Supreme Court of United States.
*341 Messrs. B.R. Curtis and Cushing, with Hutchins and Wheeler, for the appellants.
Messrs. S. Bartlett, F.C. Loring, and C.W. Loring, contra.
*349 *350 Mr. Justice NELSON delivered the opinion of the court.
The first question in the case arises on the following provision of a statute of the State of Massachusetts: "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." As it is admitted that no provision was made by the testatrix in her lifetime for the issue of the deceased son, the question turns on the remaining clause of the statute; and, so far as regards an examination of it with reference to the terms of the will, depends on facts, which may be stated as follows: At the date of the will, in which a life estate was given to the son, his children were living, but were not noticed therein by the testatrix, nor in the codicil of the 14th July, the year following, in which the life income of the son was increased.
There is, therefore, an entire omission to make any provision for the issue, or, even to notice them in the will, which brings the complainants directly within the enacting clause of this statute, and entitles them to a share of the estate the same as if the testatrix had died intestate, unless, in the language of the act, "it shall appear that such omission was intentional, and not occasioned by any accident or mistake." Whether or not the omission was intentional, or by mistake, may be ascertained from a careful perusal of the terms of the will, or by parol. This is the settled construction of the statute by several decisions in the courts of Massachusetts, where, it is said, that whenever it appears the testator has, through forgetfulness or mistake, omitted to bestow anything upon the child or grandchild, the legislature intended to effect that which it is highly reasonable to believe, but for such forgetfulness, he would, himself, have done. And, speaking of an examination of the will as bearing upon the subject, it is observed, that whenever it may fairly be presumed *351 from the tenor of the will, or from any clause in it, that the testator intentionally omitted to give a legacy, or make a devise to a child or grandchild (whose parent is dead), the court will not interfere.
In the present case it is claimed, that by a perusal of the will, or by the parol proof, or both, it satisfactorily appears, that the omission by the testatrix was intentional, so as to cut off the grandchildren, the complainants.
The grounds upon which this is urged on the part of defendants are
(1) That the grandchildren were living at the time of the execution of the will, and of the codicil, as was also their father, for whom particular provision was made out of the estate. It is insisted that the testatrix, in settling upon the portion thus devised to the father on both of these occasions, must have had present to her mind the grandchildren; that it is not natural, or reasonable to suppose, she could, on each of them, have deliberately and solemnly made provision for the father, without taking into consideration the state and condition of his family, which then consisted of his wife and the three grandchildren, and, in confirmation of this view, cases are referred to where the gift was to the grandchildren, omitting the parent, and the mere statement in the will that the grandchildren were the children of the son or daughter omitted, was held conclusive that the son or daughter was not forgotten, but intentionally omitted such as a gift "to the children of her son Edward" or "to grandchildren of his daughter Sarah."[*]
(2) The studied exclusion of the grandchildren, then living, by limiting the provision made for the father to a life estate, and, at his death, giving it over to charitable uses and repeating the same limitation in the following year on the execution of the codicil. In view of these circumstances, and this posture of the case, it is insisted that the testatrix must have had called to her mind the children of the son, and also the further fact, that, in the ordinary course of *352 nature, the children, or some of them, would survive the father; notwithstanding all which, she limited the provision for the father to a life estate, and devised the remainder over from the children.
It has been argued that the time to which the question of omission has reference, is the time of Mrs. Loring's decease. This, in a general sense, may be true, because, till then, it was possible for her to make provision in a codicil, or by a new will, for the grandchildren. It could not, therefore, be absolutely known before her decease that such provision would not be made. But, whether the omission was intentional, or by mistake, is not confined to this period; on the contrary, when the question is answered from a perusal of the will, it is necessarily limited to the time of its execution. And, even when it depends on oral proof, that proof is received for the purpose of ascertaining the mind of the testatrix at the same period. For, it is the state of her mind at the time of the execution, generally speaking, that is to be looked to, in the contemplation of the statute, with a view to determine whether the omission was intentional, or by mistake.
This case has been likened, in the argument, to that of a child born after the making of the will, because the grandchildren only became the issue of a deceased son after the death of their father, and which occurred subsequent to the execution of the will and codicil. Whether this be so or not, cannot change the aspect of the case, or the principles that must govern it.
Undoubtedly, in the case of a son born after the making of the will, and before the death of the father, the omission to provide for him cannot be known till the death of the father, for, till then, it was competent for him to make the suitable provision. This was the case of Bancroft v. Ives.[*] But, even in that case, it was conceded to be competent for the adverse party to prove that the omission was intentional, and evidence was received and examined on the point. It *353 was held to be insufficient for the purpose. But, in the case of Prentiss v. Prentiss,[*] it was held, that a child born after the will, and before the decease of the father, was intentionally omitted; as appeared plainly on the face of the instrument. It is, doubtless, more difficult to establish that the omission was intentional, in the case of children born after the will, than if born before, and living at its date. But it would seem from the course of decisions that this is the only distinction, if it be one, in the statute.
Our conclusion on this branch of the case is, that upon a perusal of the provisions of the will, regard being had to the course of decision under the statute in the courts of the State, it sufficiently appears, especially in connection with the oral proof, that the omission to provide for the issue of the deceased son in the will was intentional, and not by accident or mistake.
The next question in the case is, whether or not the power conferred by the testatrix upon the trustees, L.H. Marsh and S.E. Guild, to appoint three or more persons to designate the objects of her charities under the will, has been legally executed.
It is insisted, on the part of the complainants, that the power of appointment is a naked authority to appoint persons who were to act for the testatrix in choosing the objects of her bounty, and to make known to them such facts as the two trustees should deem proper to guide or influence them in the selection; that it was a personal power which looked to the merit and qualification of the individuals for the discharge of the particular duty; and, that being a naked power, the survivor was incompetent to execute it.
If the premises are well founded the conclusion is undeniable.[]
We are satisfied, however, that this is a mistaken view of the authority conferred on the trustees. They were invested *354 with the whole of the legal estate, and were to hold the same in trust to "manage, invest and reinvest the same according to their best discretion," and pay over the income to the three children of the testatrix during their lives; and, on their decease, the said Marsh and Guild, or their successors, as trustees, shall select and appoint the three persons, &c., and thereupon the said trust fund shall be disposed of and paid over in accordance with the determination of the said persons, as certified by them in writing. And then direction is given in the will to the trustees to sell and convey any and all the real estate which may be in their hands, at their discretion, for the benefit of the charities.
Now, it is quite clear, from this reference to the will, that the trust conferred upon Marsh and Guild could not have been intended as a personal trust looking to the fitness of the donees of the power, as it is conferred upon them and their successors; and, as the execution of the trust for charitable uses was postponed by the terms of the will until after the decease of the three children of the testatrix, it was natural and reasonable to have supposed that it would not take place in the lifetime of the trustees named, but would descend to their successors.
But what is more decisive of the question is, that inasmuch as the trustees are invested with the legal estate, in order to enable them to discharge the various trusts declared, it is well settled that the power conferred is a power coupled with an interest, which survives, on the death of one of them, and may be executed by the survivor. (See the authorities above referred to.) It is not necessary that the trustees should have a personal interest in the trust; it is the possession of the legal estate, or a right virtute officii in the subject over which the power is to be exercised, that makes an interest, which, when coupled with the power, the latter survives. A trust, therefore, will survive when in no way beneficial to the trustee.
We have said the trustees were invested with the legal estate for the purpose of enabling them to perform the various trusts devolved, such as managing the estate, investing *355 and reinvesting the funds belonging to it, paying over the income to the children during their lives, converting the real estate into personal, and, among others, the selection and appointment of the committee of gentlemen who were to designate the donees of the charity. This was one of the incidental trusts or duties devolved upon them by the testatrix, as trustees of the estate, upon whom she had conferred such large powers over it, and which, on the death of Guild, survived with the other trusts to the co-trustee. No well-grounded distinction can be made between these trusts. If the power survives as to one of them it survives as to all, as it is apparent on the face of the will that the trustees were to act in the same capacity in the execution of all of them.
As it respects this devise to charitable institutions there can be no doubt upon the law of Massachusetts, as habitually administered in her courts, but that the objects of the bounty are made sufficiently certain by the mode pointed out in the will; and as the question is to be determined by the local law of the State there is an end of the objection.
DECREE AFFIRMED.
[*] Church v. Crocker, 3 Massachusetts, 17; Wild v. Brewer, 2 Id 570. Wilder v. Goss, 14 Id. 357.
[*] 3 Gray, 367.
[*] 11 Allen, 47.
[] Peter v. Beverly, 10 Peters, 564; 2 Story's Equity, § 1062, and cases.
