## Facts

- Philomena Lux executed a will in 1966; her husband (named executor and residuary beneficiary) predeceased her.
- Philomena died in 1968 in Cumberland, Rhode Island, survived by her son (Anthony J. Lux, Jr.) and five minor grandchildren (all children of Anthony Jr.), including a youngest grandchild born after execution of the will but before Philomena’s death.
- The will’s residuary clause devised the residue to “my grandchildren, share and share alike,” and directed that any real estate in the residue be “maintained for the benefit” of the grandchildren and “shall not be sold until the youngest of said grandchildren has reached twenty-one years of age.”
- The will also stated that if sale of real estate became necessary, it was the testator’s “express desire” that the property be sold to a family member.
- Uncertainty arose over whether the will created an outright gift or a trust, how to determine the “youngest” grandchild for timing of sale and distribution, and how sale and income should be handled.
- After an evidentiary hearing, the Superior Court certified questions to the Rhode Island Supreme Court for construction and instructions.

## Issues

1. Whether the residuary gift to “grandchildren” coupled with directions to maintain and delay sale of real estate created a testamentary trust rather than an outright devise.
2. Whether the class of “grandchildren” remains open and how to determine the “youngest” grandchild for purposes of when sale and distribution may occur.
3. Whether the will’s statement that it was the testator’s “express desire” to sell to a family member imposed a binding restriction or merely expressed a preference.
4. Whether income from the real estate should be distributed currently or accumulated absent an express direction.

## Decision

- The court construed the will to create a testamentary trust for the grandchildren, even though the will did not use “trust” terminology.
- The class of “grandchildren” was treated as open until the time fixed for distribution; distribution could occur when the youngest of the then-living grandchildren reached age 21.
- The “express desire” to sell real estate to a family member was construed as precatory and not a condition limiting the trustee’s authority to sell when a sale was necessary.
- Absent a direction to accumulate income, trust income was payable to the beneficiaries as it accrued.

## Legal Principles

- Testamentary intent controls will construction and is determined from the instrument read as a whole, not from the presence or absence of technical trust words.
- Directions to hold property for beneficiaries’ benefit and to postpone sale/distribution can create a trust by separating legal title (in the fiduciary) from beneficial enjoyment (in the beneficiaries).
- For a class gift with postponed distribution keyed to the “youngest,” the class may remain open until distribution, with the operative “youngest” determined by the youngest member then living when distribution becomes appropriate.
- Precatory language (e.g., “express desire”) generally expresses a preference and does not impose an enforceable condition unless the will clearly manifests an intent to create a mandatory restriction.
- When a will does not require accumulation, trust income is ordinarily distributable currently to the beneficiaries.

## Conclusion

The court resolved drafting ambiguities by construing the residuary clause as establishing a trust for the grandchildren, keeping the class open until distribution, permitting necessary sale without a mandatory family-sale condition, and directing current distribution of income absent an accumulation instruction.


Lux v. Lux, 109 R.I. 592, 288 A.2d 701 (R.I. 1972)