¶1 After the foregoing opinion had been given a reargument by briefs filed was allowed on the application of the respondent, William C. Bucklin, whereupon the court filed the following rescript.
We see no reason to alter the opinion formerly expressed by us in this case, that Eliza Sherman is entitled to the accumulations of income from her share of the property devised by the will of her grandfather. Her share is given in trust for her use and benefit which entitles her to the income, and though there is a provision for the accumulation during her minority, it seems to us that such accumulation must be for her benefit solely. We find nothing in the will which imports that it is to be added to her share for the purpose of increasing it. The gift over under item 8, in case of her death without a child or more remote issue, is a gift over of "said part of said trust estate so then held in trust for such deceased," and the meaning of the words "said trust estate" is the trust estate given by the will. *386
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Case posture Posture BILL IN EQUITY for instructions.
This bill was filed by the trustees under the will of Thomas P. Bucklin, which was proved before the Court of Probate of the town of East Providence, February 8, 1870. The questions submitted are stated in the opinion of the court. The will is as follows:
I, Thomas P. Bucklin, of East Providence, in the State of Rhode Island, do hereby revoke all prior wills and testamentary dispositions by me at any time made, and declare this only to be my last will and testament, as follows, that is to say:
Item 1. I give, devise, and bequeath unto my sons, George Bucklin, William C. Bucklin, and Edward C. Bucklin, one undivided eighth part each (subject respectively to the provisions concerning debts and advancements hereinafter contained) of all my estate and property, real and personal, wheresoever the same may be, including all real estate and personal property I may hereafter acquire, to them, their respective heirs, executors, administrators, and assigns forever, to their own use.
Item 2. I give, devise, and bequeath the other five undivided eighth parts of all my said estate and property, real and personal, including all real estate and personal property I may hereafter acquire (subject, nevertheless, as to the respective portions thereof, to the provisions concerning debts and advancements hereinafter contained) unto my said son, George Bucklin, my friend, Frederic C. Farley, and my son-in-law, Charles D. Owen, as joint tenants, their heirs, executors, administrators, and assigns, according to the nature and quality thereof respectively, in special trust; to hold one fifth part of said trust estate and property; that is to say, one eighth part of all my said estate and property (subject respectively to the provisions concerning debts and advancements hereinafter contained), for the use and benefit of each of my daughters, Mary C. Owen, wife of said Charles D. Owen, Catharine A. Bucklin, and Jane W. Bucklin; and each of my granddaughters, Margaret Bucklin and Eliza Sherman, upon the trusts, and with, under, and subject to the powers, provisos, and limitations respectively hereinafter contained, that is to say:
Item 3. In trust for said trustees and the survivors and survivor of them, and other, the trustees or trustee hereunder for any time being, to take possession and charge of all said trust estate and property, at any time, or from time to time in their or his discretion, to make partition and division thereof as between the parties respectively entitled under these trusts, or with the other tenants in common, and to give or receive money or other property for equality of partition or division; to keep the trust real
estate and the improvements thereon in good order and repair, and such improvements properly insured against loss by fire; to keep the personal estate invested in safe and productive securities, with power in their or his discretion, at any time or from time to time, either before or after such partition or division, to sell said trust estate or property, or any part or parts thereof, or to alter or vary any of the investments thereof, whether existing at my decease or made afterwards, and the net proceeds of any such sale or change of investment to apply in improvements or repairs upon the real estate held under the same trusts as the part so sold; or to reinvest in other real or personal estate or securities upon such same trusts as they or he may deem advisable, and with like powers over any such new investments, as often as they or he shall deem it expedient or necessary to exercise the same; to receive and collect all the income of all said trust estates and properties, and after paying therefrom all expenses of taxes and other public charges, ordinary repairs, insurance, and other expenses and outgoings attending the care of said trust estates and properties respectively, and the execution of the trusts hereby created, to pay over as often at least as once in six months, to each of my said daughters respectively, the residue of the said income of her one fifth part aforesaid of said trust estate and property, for her own use during her life.
Item 4. And in the discretion of said trustees or trustee for the time being, to apply and appropriate to the support, benefit, and education of my said granddaughters respectively, during their respective minorities, and until they respectively attain the age of twenty one years, so much of the residue of the said income of their respective one fifth part aforesaid of said trust estate and property, as the said trustees or trustee for the time being may deem expedient.
Item 5. And from and after my said granddaughters respectively attain the age of twenty one years, to pay to them respectively, as often at least as once in six months, the net income of their respective one fifth parts of said estate, for their own use during their respective lives.
Item 6. And neither of my said daughters or granddaughters shall have the power at any time to anticipate said income or any part thereof.
Item 7. And upon the decease of each of my said daughters and granddaughters, to convey, transfer, pay, and deliver over the part of said trust estates and properties so then held in trust for such deceased, to and among her children then living, and to and among the issue then living of any child of hers who may then have deceased, but so that her children shall take in equal shares, and her more remote issue shall take (in equal shares as between brothers and sisters) the portion only which their respective parents would have taken if then living, to them and their respective heirs and assigns forever.
Item 8. Provided, that if either of my said daughters or granddaughters shall decease leaving no child or more remote issue living at the time of her decease, then for said trustees or trustee for the time being, to convey, transfer, pay, and deliver over the said part of said trust estates and properties, so then held in trust for such deceased, to and among her next of kin of my blood then living; to take and hold the same in the same proportions and manner, as they would have received the same from me had I then deceased intestate, seized and possessed of the same in fee simple.
Item 9. And provided, further, and I declare that in ascertaining the respective shares of my said sons, and the trust portions of my said daughters and granddaughters, and in apportioning and dividing my estate and property between them under this, my will, all sums of money in which at my decease, my said children, respectively, and the respective parent of each of my said grandchildren, may be indebted to me, and all sums of money which during my life I may have advanced to my said children or grandchildren, or their respective parent, and which at my decease shall appear charged to them respectively upon my books, shall be taken into the accounts; my will and intention being to make all my children and grandchildren aforesaid equal, taking into account what each, or her respective parent, may have received from me during my life, by way of loan or advancement, and what each may receive from my estate.
Item 10. And I declare that, if at any time, and as often as the number of acting trustees for the time being, under either of the foregoing trusts, shall, by declination, death, resignation, incapacity,
or inability to serve, become reduced below two, the surviving or remaining acting trustee for the time being shall forthwith, by and with the assent in writing of my said daughters or granddaughters, respectively, if then living and of twenty one years of age, and competent to assent, or, if not living or of that age, or incompetent to assent, then, without such assent, by any writing under his hand and seal, appoint two other suitable and competent persons to be trustees in the place of those who have so declined, died, resigned, or become incompetent or unable to serve, and shall thereupon, forthwith, so convey and assure the trust estate and property as to effectually vest the same in such new trustees, and in such surviving or remaining trustee, as joint tenants under the foregoing trusts thereof.
Item 11. And every such new trustee so appointed, and every other trustee hereunder, holding under any valid appointment whatever, shall immediately have and possess all the powers of a trustee, discretionary or otherwise.
Item 12. And no purchaser or other party dealing with any trustees or trustee, for any time being, shall be obliged to see to the application or reinvestment of the purchase money, or other trust money, or to the regularity of the appointment of any new trustees or trustee, provided such appointment appear upon its face to be regular.
Item 13. I hereby appoint my said son George Bucklin, and son-in-law Charles D. Owen, joint executors of this my will, and direct that they be required to give no bond as such executors.
In testimony whereof, I have hereunto set my hand and seal this twelfth day of January, A.D. eighteen hundred and seventy.
THO. P. BUCKLIN. [L.S.]
The foregoing five pages were signed, sealed, published, and declared by the said Thomas P. Bucklin, as and for his last will and testament, in the presence of us, who, at his request, in his presence, and in the presence of each other, have hereunto set our names as witnesses to the same.
HARRIET SPRAGUE, ANNIE W. COMSTOCK, JAMES TILLINGHAST. Source: CourtListener
