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Matter of Estate of Arthur Devries

Decided: June 9, 1955.

IN THE MATTER OF THE ESTATE OF ARTHUR DEVRIES, DECEASED. RUDOLF DEVRIES, INDIVIDUALLY AND AS SURVIVING TRUSTEE OF THE ESTATE OF ARTHUR DEVRIES, DECEASED, PLAINTIFF-RESPONDENT,
v.
MARGARET DEVRIES WHITE, INDIVIDUALLY, AND AS GUARDIAN AD LITEM OF THE UNKNOWN HEIRS OF MARGARET DEVRIES WHITE, DEFENDANT-APPELLANT



Clapp, Jayne and Francis. The opinion of the court was delivered by Clapp, S.j.a.d.

Clapp

The sole issue here is as to the construction of the terms of a trust under a will. Testator died in 1927, survived by his wife Elly, their son Rudolf then 15, and their daughter Margaret then 11. In 1954 Elly died, 12 years after Rudolf had reached 30. The issue is this: what portion of the principal of the trust in the trustee's hands on Elly's death was payable to Rudolf -- one-half, Rudolf claims and the court below held, or only one-quarter, as Margaret, the appellant, claims.

We are concerned in this case, not with extrinsic evidence, but with the words of the will, in particular the following:

"In the event that my wife is living when my son Rudolf, reaches the age of thirty years, then my trustees or trustee are directed to

pay to my son Rudolf one-third of the principal of the entire trust fund , together with such share of the accumulated income that my son Rudolf would be entitled to at said time, and the balance of the trust fund to be retained by my trustees for the purpose of paying to my wife, and to my daughter, Margaret, one-half each of the income from said trust fund during the remainder of the lives of my wife and my daughter, Margaret.

In the event of the death of my wife after my son Rudolf reaches the age of thirty years, and upon the death of my wife, I direct my trustees or trustee to pay to my son Rudolf, one-half the principal of said trust fund , together with one-half of the share of the accumulated income which my wife had been receiving at the time of her death, and the remaining one-half of said entire trust fund then in the hands of my trustees to be held in trust for the purpose of paying the income from said portion of said trust fund to my daughter, Margaret, during the remainder of the life of my said daughter, Margaret, and upon her death the balance of the principal of said trust fund in the hands of said trustees to be paid to the heirs of my daughter, Margaret." (Italics added)

The critical words appear near the beginning of the second paragraph quoted:

"I direct my trustees or trustee to pay to my son Rudolf, one-half the principal of said trust fund."

The phrase " said trust fund" carries one back to the very same phrase appearing near the close of the first paragraph quoted; there it clearly has reference to the amount of corpus remaining after paying Rudolf one-third. This, we conclude, fixes the significance of that phrase at the locus in question.

However the trial court then seemed to have felt bound to look no further into the will. Accordingly, construing the critical words, it held Rudolf was entitled on his mother's death to 1/2 of the corpus of the trust as it then stood. This would give him, as Margaret puts it, a total of two-thirds of the entire corpus.

The trial court's notion was that a portion of a will is to be construed with reference to the remainder only where, standing off by itself, it is ambiguous. But the law is otherwise. Indeed it is one of the postulates of this subject -- ...


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