
    William S. Todd et al. vs. St. Mary’s Church, Portsmouth, R. I. et al.
    
    APRIL 27, 1923.
    Present: Sweetland, C. J., Vincent, Stearns, Rathbun, and Sweeney, JJ.
    
      (1) Wills. Invalid Trusts. Care of Burial Lot.
    
    Testamentary provision bequeathing a sum of money in trust to a church the income to be used for the care of the burial lot and stone of testator, the balance of the income over the amount required for that purpose to be used at the discretion of the vestry of the church.
    
      
      Held, the balance of income over the amount required was clearly intended by testator as a gift for religious purposes in accordance with the discretion of the vestry of the church.
    
      Held, further that the bequest to trustees for the care of the burial lot in perpetuity was invalid but the portion so bequeathed being ascertainable, if not used in administration of the .estate would fall into the residue.
    
      (S) Wills. Care of Burial Lot.
    
    Where a testator attempted by means of an invalid trust to provide for the care of his burial lot and stone, as the estate is solvent the executors may in their discretion endeavor to carry out the intention of testator, by paying under provisions of Gen. Laws, cap. 318, § 4, to the cemetery corporation a sum for the perpetual care of the lot, the amount of the payment to be determined by the probate court and allowed as part of the funeral charges.
    
      (S) Wills. Trusts. Conflicting Clauses.
    
    Where a will provided for the payment of a sum to a church for religious purposes to be held in trust and in another clause provided for a trustee for all sums placed in trust except one specified gift, although the provisions are in conflict, it appears that testator did not have the trust for religious purposes in mind in making the later provision, and the trustee is not trustee of that trust.
    
      (D Trusts. Passive Trusts.
    
    Where the control of the income of a trust is placed in the hands of the beneficiary, the trust is executed by the statute of uses and the fund passes to the beneficiary.
    
      (5) Wills. Trusts. ■ Income.
    
    Testamentary gift of a fund to be placed in trust, the beneficiary “to have the 'income her fife after her to be equally divided among her surviving . children. ”
    
      Held, that on death of beneficiary, the surviving children took the fund, rather than the income, to be divided equally among them.
    
      (i6) Wills. “Heirs.” ■ “Children.” “Issue.”
    
    The words “heir” or “heirs” are terms of technical import and include all who might succeed in case of intestacy, but they are sometimes used popularly as words of description in the sense of “children” or “issue.” In the construction of a will the latter interpretation is permissible when that clearly appears to have been the intention of testator.
    (7) Wills. “Heir.”
    
    Testamentary provision “To X and his wife for their life if they shall have an heir it shall go to said heir after them.”
    
      Held, the word “heir” should be given the interpretation of “child” “childreh” or “issue” of the marriage of X and his wife, such descendants to take per stirpes.
    
    
      
      (8) Wills. Trusts.
    
    Testamentary provision “To X and wife the sum of $2,000 to be placed in trust they to have the income of the same should his wife survive him then it shall go to her. ”
    
      Held, that during the lives'of X and his wife the income of the fund belonged to them in equal shares and if the wife survived, the fund belonged to her, but if X survived his wife, the entire income belonged to him for life and upon his death the fund fell into the residue of the estate.
    
      (9) Wills. Intestate Estate.
    
    Where testator provided that the residue should be reduced to money and divided into fifty equal parts and bequeathed forty-eight of the parts, he died intestate as to the other two parts, and they should be distributed in accordance with the statute as to distribution of intestate estate.
    Bill in Equity for construction of will.' Certified from Superior Court.
   Sweetland, C. J.

This is a bill in equity praying for the construction of the third, seventh, eighth, thirteenth and sixteenth clauses of the will of John C. Gardner, late of Portsmouth, deceased. In the Superior Court the cause being ready for hearing for final decree was certified to this court for final determination.

The will is not skillfully drawn. In some respects its language appears to the complainants to be ambiguous. The third clause is as follows: “Thirdly: I bequeathe to St. Mary’s Church of Portsmouth, R. I. Three Thousand (3000.00) Dollars to be placed in trust, the income of which to be used for the care of my lot and stone which I wish to be kept free from moss that may gather on said stone. If the income is more than sufficient for this purpose the balance shall be used at the disgression of the vestry.” In using the word “disgression” the testator undoubtedly intended to use the word “discretion.” By this clause the testator clearly intended to give $3,000 to St. Mary’s Church at Portsmouth, to be held in trust, to use such portion of the income therefrom as should be required to care for the testator’s burial lot and to use the balance for religious purposes in accordance with the discretion of the vestry of the church. It is agreed by the parties that the income of the sum of $500 would be amply sufficient to keep the testator’s cemetery lot and the monument thereon in good order and repair. It is established in this state that a bequest to trustees in perpetuity for the care of a burial lot is not for charitable uses and is invalid. Kelly v. Nichols, 17 R. I. 306; Sherman v. Baker, 20 R. I. 446; Shippee v. Industrial Trust Co., 43 R. I. 115. In R. I. Hospital Trust Co. v. Town Council, 29 R. I. 393, it was held that a gift for such purposes if made to a town council in accordance with the provisions of Section 37, Chapter 50, General Laws, 1909, is valid. The portion of the sum of $3,000, which was bequeathed upon an invalid trust, because for a private use, .is ascertainable, and the same if not used in administration of the testator’s'estate will fall into the residue thereof.

This estate is solvent and, under the authority of our .statute, the executors may in their discretion endeavor to carry out what was plainly the intention of the testator. Section 4, Chapter 318, General Laws, 1909, provides, among other things, that the executor or administrator of a solvent estate “may pay to a cemetery corporation or to a town or city a reasonable sum for the perpetual care of the lot in which the body of his testator or intestate is buried.” The amount of the payment is to be determined by the probate court and the payment allowed as part of the funeral charges.

(4) The remainder of the sum placed in trust under the third clause of the will, or $2,500, is given for religious purposes which constitutes a good charitable trust and the executor should pay that sum to said church to hold in trust, the income thereof to be applied in accordance with the discretion of the vestry of the church. The complainants have argued to us that William S. Todd should hold said $2,500 as trustee, because of the provision in the eightheenth paragraph of the will naming Mr. Todd “trustee for all sums placed in trust except the trust mentioned to Mr. Christopher Manchester.” This provision appears to us to conflict with the language of the third clause. In the case of other trusts created by the will, which were for the lives of persons in being with remainder over, there was need of a trustee to protect the trust property until the death of the person having the life interest. The trust created by the third clause was a charitable trust, and will undoubtedly continue long after the life of Mr. Todd. In view of the language of the third clause and the nature of the trust therein created we are of the opinion that the testator did not have that trust in mind in making said provision in the eighteenth clause, and that Mr. Todd is not trustee of the trust now in question. Also we agree with the contention of counsel for the church; if the construction of the third and eighteenth clauses together should have required that the fund go to Mr. Todd as trustee, he would have no duties to perform in regard to the trust. The control of the income is placed entirely in the hands of the officers of the church. Such a trust would amount to a passive or dry trust executed by the statute of uses and the fund would pass to the church in accordance with Guild v. Allen, 28 R. I. 430.

The seventh and eighth clauses of the will are as follows: “Seventhly: I bequeathe to Mrs. Roena H. Peckham the sum of Three Thousand (3000.) Dollars, to be placed in trust she to have the income of the same her life after her to be equally divided among her surviving children.

“Eighthly: I bequeathe to Mrs. Fannie Barker, of Middle-town, R. I. the sum of Three Thousand (3000) Dollars to be placed in trust she to have the income her life after her to be equally divided among her surviving children.” The trustee is in doubt as to the testator’s intention with regard to the gift to the surviving children of Mrs. Peckham and the gift to the surviving children of Mrs. Barker. Does each group of surviving children take the trust fund or the income thereof upon the death of their mother? In our opinion upon the death of either of these ladies her surviving children take the trust fund to be equally divided among them. We consider a reasonable construction of the language to be that in each case it is the sum of three thousand dollars which the testator intended should be divided among the surviving children and not the income upon that sum. We think this view is supported by the fact that the testator has made no other provision for the disposition of the principal of these trust funds.

The first paragraph of the thirteenth clause of the will is as follows: “Thirteenthly: If at the time of my death Mr. Christopher Manchester be living on my place known as the Harvey Place he shall have free rents and profits of the same so long as he shall live there providing he shall pay the taxes of the same and keep it in good repair'. After him it shall go to Clifford Peckham and wife their life if they shall have an heir it shall go to said heir after them if no heir then it shall be sold and the proceeds equally divided among said Clifford Peckham’s surviving brothers and sisters.” Under this paragraph the question arises as to the interpretation which should be given to the word “heir.’’ That word and also the plural “heirs,” are terms of technical import and-include all who might succeed in case of intestacy. They are sometimes used popularly as words of description in the sense of “children” or “issue.” In the construction ■of a will the latter interpretation is permissible when that clearly appears to have been the intention of the testator. Turbitt v. Carney, 43 R. I. 582. In the thirteenth clause under consideration .the word is apparently used in the popular sense by the testator, and should be given the interpretation of “child,” “children” or “issue” of the marriage of Clifford Peckham and his wife, such descendants to take per stirpes. Upon the death of the survivor of Clifford Peckham and his wife, if there are no surviving descendants of their marriage, then the property is to be sold and thé proceeds divided in accordance with the provisions of said clause. If upon the death of the survivor of Clifford Peck-ham and his wife exigency arises requiring further construction, it can be sought at that time.

The second paragraph of the thirteenth clause, of said will is as follows: “I also give to Clifford Peckham and wife the sum of Two Thousand (2000) Dollars to be placed in trust they to have the income of the same should his wife survive him then it shall go to her.” The trustee is in' doubt as to whether, if the wife of Clifford Peckham survive him, the gift to her is of the income or the principal of the sum of two thousand dollars. The antecedent of the pronoun “it” in the phrase “then it shall go to her” is “the same” referring to the sum of two thousand dollars. During the lives of Clifford Peckham and his wife the income of the fund belonged to them in equal shares. If his wife survives Mr. Peckham the fund belongs to her. If Mr. Peckham survives his wife the entire income belongs to him during his life and on his death the fund falls into the residue of the testator’s estate. The clause shows the testator’s intent to benefit Clifford Peckham during his life. It is unreasonable to infer that the testator intended that Mr. Peckham should receive that benefit during the lives of himself and his wife, but should lose it upon the death of his wife. This view is supported by the fact that the testator made no disposition of the fund upon the death of the wife of Mr. Peckham during the life of Mr Peckham.

Comstock & Canning, Andrew P. Quinn, for complainants.

Sheffield & Harvey, for St. Mary’s Church.

Max Levy, for other respondents.

In the sixteenth clause the testator provides that the' residue of his estate shall be reduced to money and divided into fifty equal parts. He then proceeds to bequeath forty-eight of said parts to various legatees. The executors ask for construction of this clause and for instruction as to' the disposition which they shall make of the two parts which the testator failed to bequeath. Plainly the testator died intestate as to such two parts, and the same should be distributed in accordance with the provisions of our statute as to the distribution of intestate estate.

On May 4, 1923, at 10 o’clock a. m. the parties may present a form of decree in accordance with this opinion.

Herbert A. Ricé, Herbert L. Carpenter, Attorney General, Charles R. Easton, Theodore F. Green, William W. Moss, appeared before the Court.  