B. M. C. DURFEE TRUST COMPANY, trustee, vs. L. WOODWARD FRANZHEIM & others.

CUTTER, J. Solomon Woodward by his will, dated July 25, 1922, left the residue of his substantial estate in trust to pay $45,000 each year "in equal shares to and among my wife . . . my daughter, Ruth . . . and my son, Philip . . . during their respective . . . lives." Upon the death of any of these life beneficiaries leaving issue, such issue were to take "in equal shares" the deceased beneficiary's share of the annual sum of $45,000. In the event of the death of a beneficiary leaving no issue, the surviving beneficiary or beneficiaries, or their issue, were to take the deceased beneficiary's

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share. The testator then made the provisions for a final distribution set out in the margin. [Note 1]

The testator died in 1926. His domicil was in Rhode Island, and his will was admitted to original probate there. Because there was real estate in Massachusetts, the will was admitted to ancillary probate here. The trust assets have been at all times personal property. The testator's widow, son, and daughter were living at his death. [Note 2] The trust terminated (see language following [A] in fn. 1) at the death of the son on January 21, 1964. "[A]t no time material were there any issue of either . . . the . . . son or daughter." It thus becomes necessary to apply the provision following [C] in fn. 1.

At the death of the testator's son in 1964, both sisters of the testator were dead. In the Franzheim line, two nephews of the testator were alive (although one of these has since died). One nephew had previously died without leaving issue. Each then living nephew then had living children and grandchildren. In the Irwin line, one grandson of Mrs. Irwin was then living. He had four living children. That grandson's two brothers were then both dead, but each such brother left surviving at the termination of

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the trust two children. One such deceased brother had a then surviving grandchild. [Note 3]

The trustee filed a petition for instructions concerning the distribution. The facts stated above were stipulated. The probate judge reserved and reported the case, without decision, for the determination of this court.

1. The will is to be construed (in matters not relating to administration) in accordance with the law of Rhode Island, the testator's domicil. See Second Bank-State St. Trust Co. v. Weston, 342 Mass. 630, 635; Moore v. Cannon, 347 Mass. 594, 597; Restatement 2d: Conflict of Laws (Tent. draft No. 13, revised by Professor Austin W. Scott, April 12, 1965), Section 1001, comments e and f. Nothing leads us to conclude that the testator intended that the will be construed in accordance with Massachusetts law. [Note 4] That he intended Rhode Island law to apply is strongly suggested by the provision for application of the Rhode Island intestacy laws in the distribution if there are no "surviving issue of my said sisters" (see sentence following point [D], fn. 1).

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2. It is far from clear (a) whether the testator desired the issue [Note 5] of his two sisters to take the trust fund on a per capita or a per stirpes basis, and (b) if a per stirpes basis was intended, whether the testator's sisters or the members of some later generation of their issue were to constitute the original stocks for the purpose of the final distribution of the trust fund.

If at the termination of the trust there had been then living issue of the testator, we assume that all his issue then living would have shared on a per capita basis because of the explicit language (following [B] in fn. 1) to that effect. See Welch v. Phinney, 337 Mass. 594, 597-598 (but see Rhode Island Hosp. Trust Co. v. Hopkins, supra, fn. 5). No such explicit language appears in the final gift (see language following [C] in fn. 1). The absence of such an explicit provision in one place and its presence in the other suggests that a different result was intended.

The testator has shown that he wishes a per capita distribution among his own issue, but this is not conclusive. The gift made by the second quoted paragraph (fn. 1) is not to the testator's own issue but to the issue of others, and a testator may well intend a disposition of gifts to the issue of others different from that intended with respect to gifts to his own issue. See Simes and Smith, Future Interests (2d ed.) Section 744, p. 232. In the circumstances, we attach no weight to the use of the words "to and among." Cf. Dodge v. Slate, 71 R. I. 191, 196-197. Nothing in this

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will shows clearly that the draftsman's use of the terms "to" and "to and among" was deliberate or intended to have special significance. The gift is in the same paragraph (see paragraph following [C] in fn. 1) with a gift (see sentence following [D] in fn. 1) to take effect "[i]f there then be no surviving issue of" the testator's sisters. This, because of the reference to the Rhode Island statutes governing intestate succession, suggests that a per stirpes distribution was intended.

We conclude that ordinary interpretation methods leave the will ambiguous. Accordingly, we turn to the Rhode Island rules of construction for guidance.

The Rhode Island constructional preference now seems to be for a per stripes distribution. [Note 6] See Kelaghan v. Lewis, R. I. , , - , [Note 7] which holds "that, in the absence of a clear intention to the contrary, a gift over to the issue of someone other than the life tenant will result in a per stirpes distribution of the gift" (emphasis supplied). [Note 8] The italicized words aptly describe the present case, where there is "absence of . . . [any] clear intention" one way or the other.

The Kelaghan case was decided only in 1964. Its result, however, had been foreshadowed to some extent by earlier Rhode Island decisions. See Guild v. Allen, 28 R. I. 430, 436-437; Rhode Island Hosp. Trust Co. v. Bridgham, 42 R. I. 161, 169-174 (giving weight in disregarding the earlier and contrary decision in Pearce v. Rickard, 18 R. I. 142, to the statute now G. L. [R. I.] Section 33-6-9); Rhode Island Hosp. Trust Co. v. FitzGerald, 49 R. I. 319, 323. See New England Trust Co. v. McAleer, 344 Mass. 107, 112-113. See

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also B. M. C. Durfee Trust Co. v. Borden, 329 Mass. 461, 463 (where grandchildren of the lineal ancestors named in a gift to issue were not permitted to take in competition with their living parents). Cf. Dodge v. Slate, 71 R. I. 191, 197, where the gift was "to my heirs now living, share and share alike. In the event that any of my heirs now living shall not survive me, then . . . the shares of those deceased shall be distributed equally among the heirs surviving me." This was held to require a per capita distribution. Cf. also Perry v. Brown, 34 R. I. 203, 226-228; Oulton v. Kidder, 128 Atl. 674, 675-676 (R. I.); Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233, 238-239; Agricultural Natl. Bank v. Schwartz, 325 Mass. 443, 445-449. Although the earlier Rhode Island decisions permitted finding, in the facts of a particular case, a basis for a per capita distribution, their trend seems to have been in the direction now stated in the Kelaghan case. Guided by that decision, and despite some language in Dodge v. Slate, supra, which may suggest a contrary result, we hold that the present distribution is to be per stirpes, at least to the extent that grandchildren and more remote descendants of the testator's sisters will not be permitted to take any share in competition with their lineal ancestors living at the termination of the trust. Such persons can take only by right of representation of a deceased ancestor.

3. No Rhode Island decision appears to be a decisive guide to whether the original stocks for the purposes of this distribution are (a) the testator's sisters (Mrs. Franzheim and Mrs. Irwin) or (b) their children (i. e. [see fn. 3] L. Woodward Franzheim, Harry C. Franzheim, and Mary Irwin Young). The rules governing distribution of a gift similar to, or comparable with, that now before us are not uniform and may be affected by particular language read in the light of the attendant circumstances. See Simes and Smith, Future Interests (2d ed.) Section 742; Powell, Real Property, Section 370; Page, Wills (Bowe-Parker rev. ed.) Sections 36.6, 36.10, 36.15-36.17; Am. Law of Property, Sections 22.14, 22.36 (and see also Section 21.13). See also Restatement: Property, Sections 304, 311 (1).

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The rules of the Restatement sections just cited, taken with the Rhode Island statutes governing descent and distribution (G. L. [R. I. 1956], Sections 33-1-1, 33-1-7, and 33-1-10, as amended through P. L. 1957, c. 155, Section 2) give some basis for the contention that the testator's sisters themselves should be treated as the original stocks for the purposes of the division. See Dexter v. Dexter, 4 Mason, 302, 306 (1st Cir. R. I.); Dodge v. Slate, 71 R. I. 191, 194. See also Branch v. DeWolf, 38 R. I. 395, 403-409. The gift, however, was to the sisters' issue. Read in the light of the circumstance that the testator's sisters, when the will was executed, were of an age at which neither of them was likely to have further issue, we think it more probable that the testator's ambiguous provision was intended to designate his sister's children whom he knew (or at least such of them as died leaving issue) as the original stocks for the purposes of such division.

We regard as distinguishable the more complete provisions dealt with in Bradlee v. Converse, 318 Mass. 117, 118-120 (where the will contained explicit language in effect directing a division per stirpes "with equality among the stirpes," and where this court decided that the stocks could be found "among the ancestors of the takers instead of among the takers themselves"; see note, 25 B. U. L. Rev. 299). The present case seems to us (in respect of determining whether the sisters or their issue were to constitute the original stocks) more like B. M. C. Durfee Trust Co. v. Borden, 329 Mass. 461, 462.

4. Accordingly (see fn. 3), one third of the trust fund is to be distributed to L. Woodward Franzheim, one third of the trust fund is to be distributed to the executrix of the will of Harry C. Franzheim, and the remaining one third of the trust fund is to be distributed among the issue of Mary Irwin Young, as follows: viz. one ninth of the trust fund to her son, L. Woodward Young; and one eighteenth of the trust fund each to Philip W. Young and Ann Y. Lewis (children, now over twenty-one, of Irving Penn Young) and to Mary Dana Young and to Francis Penn

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Young (minors, children of Francis W. Young, who appear now to be under the guardianship of Anneta T. Young).

A decree in accordance with the foregoing scheme of distribution is to be entered in the Probate Court. Costs and expenses in this court and in the Probate Court are to be in the discretion of the Probate Court.

So ordered.