dissenting. While I agree that the condemnation proceeds should be held in trust in place of the Colt Farm, I cannot subscribe to the decision that corpus distribution should be made to the last to survive of those grandchildren. That conclusion is apparently premised upon a rule of construction that under the substitute res theory the proceeds of a conversion must be affected by the same trusts as were the realty. Rules of construction, however, should not be immutable. They are intended to be invoked only if the testatorial intention is otherwise unascertainable; they should not be called upon when what the testator contemplated is evident; nor should they be relied upon when they overrule a disclosed contrary dispositive plan. Manufacturers National Bank v. McCoy, 100 R. I. 154, 212 A.2d 53, 55; Rhode Island Hospital Trust Co. v. Hooker, 101 R. I. 12, 14, 219 A.2d 772, 774. I find a contrary dispositive intent and, therefore, instead of deferring payment of the proceeds until the death of next to the last of the grandchildren, I would distribute the fund in' equal shares to *688those of Colonel Colt’s grandchildren now in being who were living at the time of his death.
Insofar as the Farm was concerned, Colonel Colt had mixed purposes. He neither intended to nor did he create a perpetual memorial. This he could easily and legally have done. Instead, he intended and he provided that the benefits of the Farm which he and his forebears had enjoyed should be shared equally by all of his grandchildren, and that upon the death of next to the last of them the fee should pass to the survivor. By a special provision, moreover, he requested that the taking survivor and his descendants should never “sell or alienate the same.” That disposition makes clear that his wishes were to preserve the many-acred family homestead situated on the shores of Mount Hope Bay in the same condition as he and his ancestors before him had known it, and that he desired that it continue in existence, not as a memorial, but so that his descendants might enjoy its benefits for a period even beyond that which was legally possible.
If these were the motivating considerations for the twenty-seventh clause — and the majority by adopting the substitute res theory agree that they were — then the deferral of corpus distribution was not purposed upon benefiting that particular grandchild who by reason of good health, á strong constitution, or chance might survive all others, but was designed as a means of preserving the status of the Farm for as long a period of time as possible for the benefit of all of the testator’s descendants. That this is so is implicit in the rationale of Colt v. Industrial Trust Co., 50 R. I. 242, 146 A. 628, where in denying a request by the clause 27th beneficiaries for a termination of the trust and a distribution of the assets, the Court as then constituted based its decision upon what it found to be a special testamentary purpose and intention to preserve the Farm for the maximum permissible period for the benefit of the testator’s descendants, rather than upon a dispositive plan *689to benefit only the survivor of named children and living grandchildren. If the intent and purpose had been to benefit such survivor, then permission to terminate and distribute would have been granted, inasmuch as all of the grandchildren, including, of course, whichever one will survive, had joined in the request for authority to terminate.1
Condemnation has now made the Colonel’s primary intent and purpose incapable of achievement, an eventuality he neither contemplated nor specifically provided for, and in such circumstances it becomes the Court’s duty to determine whether it can fairly and reasonably be said that he had an overall plan of distribution which is applicable in this contingency. If one can be found, it should control, and there is no need for resort to a rule of construction.
Colonel Colt, as the Court said in Colt v. Industrial Trust Co., supra, “* * * was prominent in the social, political and business life of the State, a man of vision, big deeds and generous impulses,” at 246, 146 A. 630. He was “devoted to his family and wished to see them happy and prosperous,” at 247, 146 A. at 630. Speculation or reliance upon chance were anathematic to him. His will bears testimony to this and in its last clause he urged his beneficiaries not to “speculate in any manner” and advised them that “Speculation, besides unfitting one for regular occupations, does not pay and is almost certain to,end in disaster.”
It is unthinkable, in my judgment, that a testator so obsessed with what to him were the evils of speculation *690would have disposed of a portion of his estate worth more than $500,000 at the time of his death in 1921 in such a manner as to create the possibility that a brother might hope for the early decease of his sister in order that he and his family rather than she and hers might benefit under their grandfather’s will.
The dispositive provisions of the will, moreover, rather than disclosing an intention which places a premium upon survivorship or longevity as among or between members of a class, reveal that the Colonel wished to treat his children and their respective descendants equally. His residual trust is exemplary of an overall plan to give equal treatment to each of his children and their descendants, rather than to reward the longest-lived at the expense of the others. In that clause he provided what in Industrial Trust Co. v. Flynn, 74 R. I. 396, 410, 60 A.2d 851, 858, we said was a clear “formula”; viz., “* * * the income from a one-third share to each of his sons and brother for life, as the first life tenants; and then for life in equal shares to as many children as would survive each first life tenants, as the second life tenants; and then to distribute a proportionate share of the principal to the child or children, as the case may be, of each second life tenant.”
In my judgment the distribution of the residuary trust demonstrates an overriding estate plan to benefit his grandchildren equally without dependency upon chance, and for that reason I would distribute the fund equally among the surviving grandchildren now living.
APPENDIX A
Twenty-seventh. I give, devise and bequeath to said Industrial Trust Company and its successors all the real estate in said Town of Bristol owned by me at the time of my decease, to have and to hold the same in special trust for the uses and purposes hereinafter expressed, that is to say: To take possession of, hold and manage the same, to pay the expenses *691of taxes, assessments, insurance premiums and repairs, of all of said real estate, and in addition to such expenses the compensation of such agents and employes as may be necessary for the safekeeping and and upkeep of my Homestead Estate in said Bristol, built by my grandfather George DeWolf in 1810, including therewith the stables, garage and other buildings thereon, and all my land adjoining, and all the furniture, plate, paintings, statuary, and personal property of all kinds in and about the premises, and also of my Pappoosequaw Farm, now called “Colt Farm” in said Bristol, and the live stock and all personal property thereon and to permit my children and grandchildren to use and occupy said Homestead Estate and said Farm as a place of residence free of rent, my son Russell to have the first right to occupy said Homestead Estate and my son Roswell to have the first right to occupy said “Colt Farm,” for and during the natural lives of said children and grandchildren until all but one of them shall have deceased, when my Trustee shall convey, transfer and deliver to such survivor, discharged of all trust, my said Homestead Estate and said Farm, with the personal property therein and thereon, and also my other real estate in said Town of Bristol then held by my Trustee under the provisions of this trust, to have and to hold the same to him or her, as the case may be, his or her heirs and assigns forever. And it is my special request that my descendants to whom said Homestead Estate and said Farm shall belong as an estate in fee simple shall not sell or alienate the same. And as to my other real estate in said Town of Bristol, my Trustee shall stand seized and possessed of the same in trust to hold and manage the same, with power and authority to renew or extend any leases, where I hold only a leasehold interest, and from the net income, rents and profits derived from said other real estate, to apply so much thereof as may be necessary for the expenses attending the care, management and custody of my Homestead Estate and my said Farm, as hereinbefore provided. And as such net income, rents and profits may not be sufficient to provide for said *692expenses. I direct my Executor to set apart one-half of my residuary Estate to be held by my Trustee in special trust to apply the net income thereof or so much as may be necesssary toward the expenses of the care, management and custody of my said Homestead Estate and said Farm, and also to supply, so far as necessary, the balance of income required to make good any deficiency in the net income from the securities set apart for the annuities named in Clause Second of this Will; and any surplus of such income to apply as provided in the Twenty-eighth clause of this Will with reference to the income of the residuary Estate to be held by my Trustee. And upon the termination of the trust hereinbefore expressed concerning my real estate in said Town of Bristol, said one-half of my residuary estate shall fall in and become a part of the other half of my residuary estate to be divided and distributed or held as provided in clause Twenty-eighth of this will.
Twenty-eighth. All the rest, residue and remainder of my estate, real and personal, (meaning and intending thereby the one-half of my residuary estate not set apart as provided in the preceding Twenty-seventh section of this Will), of which I shall die seized and possessed, or to which I shall be in any manner entitled, including any estate of which I shall have the power of appointment by will I give, devise and bequeath to said Industrial Trust Company and its successors in trust for the uses and purposes hereinafter expressed and declared of and concerning the same. That is to say: my Trustee shall make an inventory of all said rest, residue and remainder real and personal estate, and shall place values on the same and the respective parts thereof to the best of its skill and understanding; and my Trustee shall then divide said residuary estate into six equal parts or shares, each of which shall contain an equal proportion as near as may be of all bonds, shares of capital stock in corporations and other securities included in said residuary estate. One of said six parts or shares of said residuary estate shall be conveyed, transferred and made over, discharged of all trust, to my son Russell *693Griswold Colt, and one of said parts or shares shall be conveyed, transferred and made over, discharged of all trust, to my son Roswell Christopher Colt. One of said six parts or shares shall be conveyed, transferred and made over, discharged of all trust, to my brother LeBaron Bradford Colt. The remaining three parts or shares of said residuary estate shall be held by my Trustee upon the trusts hereinafter expressed. My Trustee shall pay over semi-annually or oftener in its discretion the net income arising therefrom in equal shares to my two sons, Russell Griswold Colt and Roswell Christopher Colt and my brother LeBaron Bradford Colt, for and during the terms of their natural lives; and upon the decease of any of them should such deceased son or brother survive me, otherwise from and after my decease, my Trustee shall pay to the surviving child or children of such deceased son or brother for and during the term of his, her or their natural life or lives the share of said net income to which such deceased son or brother would be entitled if living. And upon the decease of such child or children of my said sons and my said brother, as the same shall respectively happen, my Trustee shall convey, transfer and set over to the child or children of such deceased child or children, per stirpes and not per capita, his, her or their proportionate share of this trust estate, as an estate vested in fee simple, discharged of all trust. And in case of failure of the limitations and objects of the preceding trust, that is to say, if either or both of my said sons or my said brother shall die leaving no child surviving, or if leaving child or children surviving, such last named child or children shall die leaving no child or children surviving him, her or them, as the case may be, then my Trustee shall convey, transfer and set over, discharged of all trust, the share or shares of said trust estate to which any such grandchild or grandchildren would have been entitled if living, to the person or persons who at the time of ascertaining such failure of the aforesaid objects of said trusts would have been my heir or heirs-at-law according to the statutes of descent of real estate then in force in the State of *694Rhode Island, if I had at that time died intestate, seized and possessed of said share or shares.
Twenty-ninth. I specially authorize and empower my Executor, whether acting as such or as Trustee, to sell and convey at public or private sale any of my property, real or personal (except my Homestead Estate and my Farm in said Town of Bristol) and to improve any of the property held by it as Trustee, with power in its discretion from time to time to alter and vary investments whether existing at my decease or made afterward, with power also to continue so long as it may deem best, any part of said trust premises in the state, form or investment in which the same may be at the time of my decease, with power to collect and receive the income arising from said premises and to pay all expenses attending the care and management of said trust premises including a reasonable compensation for its services. And I declare that all reinvestments shall be held upon the same trusts and be subject to the same powers as near as may be as the original investments comprising said trust estate.
Except as hereinbefore restricted, I authorize and empower my Trustee to exercise discretionary powers of sale, lease, partition and exchange over the real and personal estate or any part thereof, at the time of my decease or from time to time thereafter, composing or belonging to said trust estate, and to make, execute and deliver any instruments necessary to convey or transfer the legal title thereto. I declare that purchasers and other persons, who shall pay any trust moneys to my Trustee or to my Executor, shall be exempt from all responsibility in respect to the application of the same, and from the necessity of inquiring into the regularity, validity or propriety of any sale purporting to be made under the trusts or powers herein set forth.
I declare that the expression “My Trustee” used by me in this Will shall be construed as referring to and comprising the Trustee or Trustees for the time being under this Will, original or substituted.*695Edwards & Angelí, Ronald B. Smith, Edward F. Hindle, John 11. Blish, for plaintiff. Attorneys for certain defendants: Winograd, Winograd & Marcus, Max Winograd, Allan M. Shine; ■ ■ Francis J. Maguire; Ferdinand A. Bruno; Quinn & Quinn, Thomas H. Quinn, Bernard V. Buonanno, Jr.; Higgins & Slattery, Eugene V. Higgins; Jordan, Hanson & Curran, William A., Curran of counsel; Moakler, Sherlock & Geremia, John W. Moakler; H. L. Weller, S. Everett Wilkins of counsel; Coffey, Ward, McGovern and Novogroski, Matthew E. Ward, Dominic F. Cresto; Forsythe, McGovern, Pearson & Nash, Carl S. Forsythe, Kenneth Pearson of counsel;
It is my desire and I hereby request that wherever practicable the said Industrial Trust Company shall be appointed Guardian of the Estates of such of the beneficiaries named in this Will as shall be minors at the time the gifts to such beneficiaries shall take effect.
I desire specially to impress upon my children and other relatives remembered under this my Will that they shall not speculate in any manner with the funds given them hereunder. Speculation, besides unfitting one for regular occupations, does not pay and is almost certain to end in disaster. Money well invested with an average yield of say 5% will accumulate fast enough and the possessor of solid, unencumbered securities, who neither speculates nor borrows money, feels strong and independent and is in far better condition to cope with the trials of life which come to all.*696 Moore, Virgadamo, Boyle & Lynch, Francis J. Boyle; Bruce G. Sundlun; Amram, Hahn & Sundlun, Walsh and Levine W. Barton Leach of counsel; Robert L. Levine of counsel; George Schwolsky of counsel; Jack C. Sando of counsel, for defendants.
The conclusion expressed in the supplemental brief filed in that case by the guardian of three of the grandchildren is of equal significance now. He said then, “The trust is now of no benefit to anybody and, if carried out in strict accordance with its terms, will in all human probability be of no benefit to anybody until in the far distant future all the trust property is conveyed to the last survivor of the class, when he will be too old to get much real enjoyment from it. The plan proposed, if carried out, will bring the trust to an end in an orderly manner and with a result that will be fair to all concerned and to the advantage of ever}' person interested under the trusts of the will.”