US SUPREME COURT DECISIONS

1. Where a testatrix, having children and grandchildren the issue of one of them, makes a will, in form, leaving the income of her property in trust equally between the children for life (saying nothing about the grandchildren), and afterwards to charities, and on the death of one of the children issueless makes a codicil distributing the income again among the surviving children for life (again saying nothing about the grandchildren), and the child having issue dies in the lifetime of the testatrix, leaving these, the grandchildren of the testatrix -- and the testatrix then dies -- the omission of such testatrix to provide for her grandchildren is to be taken (especially if parol proofs, admissible by the law of the state, aid such conclusion) to have been intentional and not to have been occasioned by any accident or mistake. Hence, the case will not come within the 25th section of chapter 92 of the Revised Statutes of Massachusetts (A.D. 1860), which provides for the issue of any deceased child or children, as in cases of intestacy, "unless it shall appear that such omission was intentional, and not occasioned by any accident or mistake."

2. Where two persons, as trustees, are invested by last will with the whole of a legal estate and are to hold it in trust to "manage, invest and reinvest the same according to their best discretion" and pay over income during certain lives, and, on their efflux, these persons or their successors, as trustees, are to select and appoint persons who are to be informed of the facts by the trustees and who are to distribute the capital among permanently established and incorporated institutions for the benefit of the poor, the power given to such two persons to select and appoint is a power which will survive, and on the death of one in the lifetime of the testator may he properly executed by the other.

3. By the law of Massachusetts, as administered by her courts, in a devise to charitable institutions, in form such as just above indicated, the objects of the charity are made sufficiently certain. And, as the question of such certainty is to be determined by the local law of the state, any objection of uncertainty cannot be heard here. chanrobles.com-red

Page 73 U. S. 338

The 25th section of chapter 92, of the Revised Statutes of Massachusetts, A.D. 1860 -- a reenactment, essentially of earlier statutes -- thus enacts:

"When any testator shall omit to provide in his will for any of his children, or for the issue of any deceased child, they shall take the same share of his estate, both real and personal, that they would have been entitled to if he had died intestate, unless it shall have been provided for by the testator in his lifetime, or unless it shall appear that such omission was intentional, and not occasioned by any accident or mistake."

With this statute in force, Mrs. Loring made her last will. She had living at this time a son (Josiah) who had, living, three children, Mrs. Loring's grandchildren, of course, and two daughters, one married (Mrs. Cornelia Thompson), but not having issue, and the other single, Miss Abby Loring. By her last will, Mrs. Loring left the bulk of her estate to two persons, Marsh and Guild, of Boston:

"To have and to hold the same to them and the survivor of them, and their and his heirs and assigns forever, to their own use, but in trust &c.; to hold, manage, invest and reinvest the same according to their best discretion; and to pay over one-third of the net income therefrom to my daughter, Abby, during her life; to pay over another third of said income to my daughter, Cornelia Thompson, during her life; and to pay over another third of said income to my son, Josiah, during his life, so that the said income shall go to them personally, and shall not be liable for their debts or to the control of any other person; and upon the decease of my said children severally the shares of said income which they would continue to take if living shall be retained and invested by the trustees until the decease of my last surviving child, and shall then, with the principal, or trust fund, be disposed of for the benefit of the poor, in the manner hereinafter provided."

The will proceeded:

"It is my will that when, upon the decease of all my children,

Page 73 U. S. 339

the trust fund is to be disposed of as aforesaid, the said Marsh and Guild, or their successors, as trustees, shall select and appoint three or more gentlemen, who shall be informed of the facts by the trustees, and shall determine how, by the payments to permanently established and incorporated charitable institutions, my wish to benefit the poor will be best carried into effect, and my gift may be made most productive of benefit to the poor; and that thereupon the said trust fund shall be disposed of and paid over, in accordance with the determination of the said gentlemen, certified by them in writing, to the trustees."

The daughter, Mrs. Thompson, having died during the life of the testatrix, Mrs. Loring made a codicil to her will, which, after reciting the former disposition of the income, proceeded:

"I revoke so much of my will as provides for the said division of the said income, and its payment in three parts, and order and direct that the said income be paid, under the conditions and provisions in my said will contained, to my daughter Abby and my son Josiah, they me surviving, in equal shares during their joint lives, and one-half thereof to the survivor of them, during his or her life, it being my intention that my said two children shall have the whole of the said income in equal shares during their joint lives if they shall both survive me, and the survivor of them one-half of the said income during his or her life."

After this codicil was made (the testatrix, however, yet living), the son, Josiah, died, leaving three children. Soon afterwards, July 16, 1862, Guild, one of the trustees named in the will, died, and last of all, about four months after this, Mrs. Loring herself. Guild, having thus died in the lifetime of the testatrix, Marsh, the surviving trustee, appointed the committee of three persons whom the testatrix had designated as the persons to determine the charitable institutions among whom her estate should go, and the committee named them.

Miss Abby Loring, the single daughter of the testatrix, having died soon after her mother, unmarried and intestate, chanrobles.com-red

Page 73 U. S. 340

the three children of Josiah Loring, these being the sole heirs-at-law of Mrs. Loring, the testatrix, now filed their bill against Marsh and others, to have the estate, or their share of it.

The grounds of the claim as made here, and in the court below, were:

1. That the omission of Mrs. Loring was "unintentional, and occasioned by accident or mistake," and the case so within the statute.

2. That the power conferred by the will upon the trustees, Marsh and Guild, to appoint persons to designate the objects of the testatrix's charity had not been and could not, owing to the death of Guild, in Mrs. Loring's lifetime, be legally executed.

3. That the devise to the charitable uses was void because, from defect of capacity to appoint, they were now uncertain and incapable of being ascertained.

In accordance with the law of Massachusetts, [Footnote 1] oral evidence was taken on both sides as to the intention of Mrs. Loring to exclude her son's children. On the one hand, there was the positive testimony of a girl or young woman, named Pratt, who stated that she had lived in Mrs. Loring's family for over seven years, as a "companion" to Mrs. Loring, but whose services, Mr. Thompson, the son-in-law of Mrs. Loring, testified were purely servile. This person, who the record showed had been called by Mrs. Loring as a witness to her will, testified that she had often, very often, heard Mrs. Loring say that her son's children should not derive any benefit from her estate after her death; that this was said both when the will and after the will and codicil were made, the cause being a dislike which she had of her son's wife's family. On the other hand, there was testimony by the same son-in-law that Mrs. Loring exhibited no dislike to her grandchildren, the complainants, and never expressed to him any intention of the sort above mentioned. But beyond this there was no attempt to impeach the testimony chanrobles.com-red

Page 73 U. S. 341

of the first witness, and her character appeared to be fair.

The court below dismissed the bill. chanrobles.com-red

Page 73 U. S. 350