The parties have not contended that the surplus income that has accrued is not a part of the residuary estate. See Weeks v. Pierce, 279 Mass. 108, 118. The respondent hospital states in its brief that "The fundamental question presented is whether this is a 'proper case' where the court may terminate in part a testamentary trust before the exact time fixed by the testator for its termination under the strict literal wording of the will."
The charities have argued with force (citing much authority for the proposition) that the court has the power to do what the charities seek by way of permitting a substantial termination of the trust in their favor. Weeks v. Pierce, 279 Mass. 108, 116. Ames v. Hall, 313 Mass. 33, 37. The Attorney General (G.L.c. 12, § 8) urges that the trust should not be partially terminated as requested by the charities and that no part of the principal should be distributed to the charities until the death of the annuitant, Josephine Stanley Kann. In the circumstances of this case, we do not reach that issue.
The court there held that the accumulated income should go under the residuary clause because the accumulation was not included in the bequest, and "the donative words do not include all there is of the fund." See also Weeks v. Pierce, 279 Mass. 108, 181 N.E. 231. In the case before us, there was no fixed sum or annuity to be paid out of this codicil fund, but there was a sum which could be definitely ascertained each year, although it differed in each year.
We think the case is governed on this point by Brown v. Wright, 168 Mass. 506, 509-510, rather than by Abbott v. Williams, 268 Mass. 275, 284-285. See Brown v. Wright, 194 Mass. 540, 544; Lyman v. Sohier, 266 Mass. 4; Weeks v. Pierce, 279 Mass. 108, 118-119; SpringfieldSafe Deposit Trust Co. v. Friele, 304 Mass. 224; Old Colony Trust Co. v. Treadwell, 312 Mass. 214, 216; O'Neill v. Connelly, 312 Mass. 508, 511. It follows from what has been said that the decree must be modified by striking out that part of it dealing with the transfer to principal of the ten per cent of excess income and substituting therefor an adjudication that this income has heretofore been properly added to principal and an instruction that the trustees should continue to add to principal ten per cent of any similar excess income hereafter accruing, and as modified the decree is affirmed.
It is true that a construction of a will leading to a partial intestacy is not favored and will not be adopted unless plainly required by the language. Casey v. Genter, 276 Mass. 165, 170. Weeks v. Pierce, 279 Mass. 108, 118. Devine v. Deckrow, 299 Mass. 28, 31. Robertson v. Robertson, 313 Mass. 520, 525. But if the specific directions of the will cannot be carried out, or when carried out leave a surplus that cannot be used therefor, there must be a resulting trust for the heirs or next of kin unless there is a general charitable intent permitting the application of the fund to other charitable purposes under the cy pres doctrine.
See Dana v. Dana, 185 Mass. 156, 157, 160; Harvard College v. Balch, 171 Ill. 275, 282. If the remainder in one half part of the "homestead estate" given to Ernest F. Pope was contingent rather than vested, it is for reasons other than the existence of the power of sale. Two canons of interpretation of wills of a general nature are (a) that a "construction of a will, resulting in intestacy is not to be adopted unless plainly required" ( Hedge v. State Street Trust Co. 251 Mass. 410, 412; Boston Safe Deposit Trust Co. v. Park, 307 Mass. 255, 261) on the ground that it is to be assumed "that the testator intended to dispose of his entire estate and not to die intestate as to any part of it" ( Gardiner v. Pelton, 260 Mass. 577, 582; Weeks v. Pierce, 279 Mass. 108, 118), and (b) that "no remainder will be construed to be contingent which may consistently with the intention be deemed vested." Commissioner of Corporations Taxation v. Alford, 282 Mass. 113, 117.
The only safe generalization is that termination in whole or in part has been ordered where such termination would best accomplish the testator's intent, Inches v. Hill, 106 Mass. 575, 578; Sears v. Hardy, 120 Mass. 524, 541, 542; Sears v. Choate, 146 Mass. 395, 397, 398; Bartlett, petitioner, 163 Mass. 509, 513; Williams v. Thacher, 186 Mass. 293; Welch v. Episcopal Theological School, 189 Mass. 108, 109, and has been denied where it would tend to defeat that intent. Schaffer v. Wadsworth, 106 Mass. 19. Claflin v. Claflin, 149 Mass. 19. Young v. Snow, 167 Mass. 287. Forbes v. Snow, 245 Mass. 85, 93. Abbott v. Williams, 268 Mass. 275, 283. Weeks v. Pierce, 279 Mass. 108, 116. Damon v. Damon, 312 Mass. 268. Many of the cases are discussed in Springfield Safe Deposit Trust Co. v. Friele, 304 Mass. 224. Scott on Trusts, §§ 337.8, 340.2. In the present case the decree fully protects the surviving husband, and a present distribution of so much of the fund as is not required for his protection will be in accordance with the testator's general purpose that the trustees should distribute the fund "on the decease" of his daughter by adding it to the "shares" of his other children, "subject, however, to any provision made for a surviving husband to the extent and in the manner aforesaid."
There is now no controversy between these two respondents, and there is no occasion to determine which of them would be entitled to the excess income, if there were any. But, in any event, where, as here, a testator apparently intended to dispose of his entire estate, an interpretation of the will resulting in even a partial intestacy is to be avoided if reasonably possible. Weeks v. Pierce, 279 Mass. 108, 118. Fitts v. Powell, 307 Mass. 449, 455. Decree affirmed.
The setting aside of a part of the fund to pay his annuity and the present distribution of the balance would be inconsistent with the decision upon this same trust in Abbott v. Williams, 268 Mass. 275, 283. See also Weeks v. Pierce, 279 Mass. 108, 115-117. The trust must continue until its objects are completed. Springfield Safe Deposit Trust Co. v. Friele, 304 Mass. 224, 227-230, and cases cited. If the results of the view we take may be thought unfortunate by some of the parties, this is a consequence of the dispositions which we think the testator intended to make and of the concentration of his interest upon the near future rather than upon the more remote future. If this is a fault in the will it is a fault of fairly common occurrence. It is not for us to try to draft a better will in the light of conditions fifty-four years later.
Hedge v. State Street Trust Co. 251 Mass. 410, 412. Weeks v. Pierce, 279 Mass. 108. With this limitation over in the will, however it may be construed, the likelihood of an intestacy as to the remainder of the trust in question, resulting from a construction of the gift thereof to the primary remaindermen as contingent upon one or more of them being living at the time of the termination of the trust, was highly remote, if not nonexistent, at the date of the execution of the will and at the date of the death of the testator.