147 Mass. 465 | Mass. | 1888
This is a bill for instructions, brought by the executors of the will of Henry L. Batchelder. It is agreed that the testator and his wife died at the same time, in the wreck of
It is argued, that the gifts in remainder are confined to the fund given to the trustees for the wife, and that that fund could not have included a distinct fund given to her out and out by an earlier clause of the will. We are not disposed to undervalue the force of this argument, considered as a critical interpretation of words having no established meaning or purpose. But in our day, at least, one settled and understood purpose of a general residuary clause is to prevent a partial intestacy. The testator knows that his specific intentions may fail, and it is partly on that account that he follows up his more particular provisions with a general drag-net. The words “the rest and residue of my estate ” have acquired the meaning, not merely of the residue above that which the will purports to dispose of, but of the residue above what it does effectually dispose of in the event. It is immaterial that the will shows that the testator expected and intended a gift to go another way, and did not expect it to pass under the residuary clause, unless the will discloses a distinct intention that it should not pass as part of the residue, even if the specified intention fails. One of the very objects is to provide for unexpected, as well as for expected cases. It is for this reason that lapsed legacies and devises pass under a general residuary clause. Thayer v. Wellington, 9 Allen, 283. Lovering v. Lovering, 129 Mass. 97, 100.
When a residue is left to A. for life, with remainder to B. and C., you must consider B. and C., as well as A., in construing the scope of the gift. You must remember that what will be the residue is not certain at the time of the will, but depends upon the event. If A. dies before the testator, B. and C. will take at once. There seems to be no more reason why, because, if the
In In re Spooner's trust, 2 Sim. (N. S.) 129, a testatrix having a power of appointment appointed to her children by name, and constituted one son her residuary legatee. Another son died without issue in the testatrix’s lifetime, and it was held that no such contrary intention appeared in the will as to prevent the residuary legatee from taking the share of the deceased son, which it had beezz ineffectually attempted to appoint specially. In Bernard v. Minshull, Johnson, 276, a testatrix having a power of appointment recited it, expressed an intention to exercise it, and appointed to her husband, but requested him to make a disposition of a specified part to carry out her expressed wishes. This request failed, because the testatrix had failed to express her wishes. It was held, that the husband was entitled to the part which he was intended not to take under the appointment, by virtue of a gift to him of “all and singular other my property and estate.” Here it was very plain that the testatrix did not contemplate any part of the appointed fund passing under the residuary clause, but the general intent of the residuary clause prevailed, and the Vice-Chancellor, Page Wood, observed, that a very strong case must be made in order to induce the court to arrive at the conclusion that the property was effectually excepted out of the operation of the residuary clause. He also said, “ All you have to consider is, whether the property is excepted in order to take it away under .all circumstances and for all purposes from the persons to .whom the rest of the
The first of the legacies which are given, as we have stated, by the residuary clause, after the death of the testator’s wife, are gifts of $5,000 each to the two trustees for the wife “for the faithful performance of their trust.” The words used expressly make the faithful performance of the trust the consideration and the condition of the right to the legacies, and negative the supposition that the legacies are given unconditionally, as marks of personal regard. Even if we should go so far as to say that the gifts of $5,000 are in addition to such ordinary compensation as might be allowed by the court, in view of the provision deducting from the gross income all necessary expenses and legal charges incident to the management of the estate, still it is clear that they are compensation, and conditioned as we have said. The trust has failed, and the legacies fail with it. Kirkland v. Narramore, 105 Mass. 31. Barber v. Tebbitt, 29 Ch. D. 893.
The case presents a question of practice. The executors who bring the bill are also the parties named as trustees, and as such have an interest in the question just discussed. Bills for instructions suggest the analogy of bills of interpleader, although the jurisdiction of the former has been referred to the statutory jurisdiction in cases of trusts. Pub. Sts. c. 151, § 2, cl. 2. Treadwell v. Cordis, 5 Gray, 341, 348. It was laid down in Houghton v. Kendall, 7 Allen, 72, that, considering the plaintiff’s relation to the parties, and the fact that he cannot be allowed to charge the estate for the costs of an argument, he ought not to take any part in the discussion. Afterwards the court passed a rule that, in such bills, no counsel for the plaintiff shall appear, or be heard, or act for and in behalf of any or either of the defendants. 26th Chancery Rule, 136 Mass. 607. But however it may have come about, it is settled in this Commonwealth, by long established practice and by decision, that the scope of bills for instructions is wider than that of bills of interpleader. Stevens v. Warren, 101 Mass. 564. Putnam v. Collamore, 109
Decree accordingly.