189 Mass. 510 | Mass. | 1905
Nancy C. Chace died February 16, 1903, leaving a will, the material parts of which are as follows:
“ First. After the payment of my just debts and funeral charges, I give and bequeath the sum of two hundred dollars to my oldest son, Lewis W. Berry.
“Second. I give and bequeath the rest and residue of my estate to my younger children Elbridge G. Chace and Ellen I. Best to be divided equally between them.
“Third. I hereby nominate my son, Elbridge G. and my daughter Ellen I. sole executors of this will and request that no sureties be required on their bond as such executors.”
Lewis W. Berry is the son of the testatrix by her first husband, who died in 1859, and Elbridge G. Chace and Ellen I. Best are her children by her second husband, who also died before the date of her will. At the date of the will the three children named therein were living, but Elbridge G. Chace died before the testatrix, intestate and leaving no issue. The testatrix received at least a substantial part of her property
1. After the death of the testatrix, there was found among her private papers, together with her will, a memorandum, reading as follows:
“ Fairhaven, I have finished this the 7 day of December 1902, began it a month ago.
“Nancy C. Chace.
“ Lewis W. Berry Rock Elm, Wis.
“ I have remembered him, it was my duty, he was a neglected child after nine years old.
“ Ida M. Putny Gilmington, Wis.
“ Ellen, give her 25 dollars, is my wish
“ She is my grandaughter & married
“ Mary E. Berry Marinett Wis.
“ Give her 50 dollars, she is single, also my grandaughter, not strong.
“ Alvira Cowley, Plymouth, Mass.
“ Give my niece 50 dollars as a debt of grattitude, she & I understand
“ A mat to Frank Shooks
“ « « ti J£fge Peck
“ Silk quilt to Deborah, and anything else you wish.
“ Alter & Ellen what they wish.
“ Give Will’s folks two quilts, the same to Walter.
*512 “You will do this for me Ellen — but give no money legacies unless you have plenty for other expences.
“ Your mother
“ To Ellen I. Best, Stoneham, Mass.
“ This is not a legal document but you with your princaple will legalize it if necessary with without interference if so make what change you need.
“Feb. 3d, 1903. N. C. Chace”
The authenticity of this memorandum is admitted, and it is agreed that it may be admitted in evidence, if competent; but the respondent denies its competency. The petitioner contends that the contents of this memorandum indicate an intention that Berry should have only the $200 bequeathed to him, and that the whole of the residue should go to the younger children; that it is equivalent to a declaration by the testatrix that her intention was what the petitioner now contends that it was. But the very statement of her contention is enough to overthrow it. The language of the will is to be construed with reference to the subject matter and all the surrounding facts which were known to the testatrix; her purpose and intention must be gathered from the language of the will, taken in connection with such attendant circumstances. Gould v. Chamberlain, 184 Mass. 115. Morse v. Stearns, 131 Mass. 389, 390. Buckley v. Gerard, 123 Mass. 8. And where, as here, there is no ambiguity on the face of the will taken in connection with all the surrounding facts, so that no doubt is raised as to the subject matter of the bequest or the identity of the legatee, extrinsic evidence of the intention of the testatrix is not admissible to control or alter her legal intent as manifested by the will itself. Lincoln v. Perry, 149 Mass. 368. American Bible Society v. Pratt, 9 Allen, 109. Tucker v. Seaman's Aid Society, 7 Met. 188.
Accordingly the memorandum was not admissible to show the intention of the testatrix.
2. The residuary clause in the will must be regarded as making separate bequests to Elbridge G. Chace and the petitioner, and not one bequest to them considered as a class. There is nothing to indicate that these words are, as argued by the petitioner, merely the chance expression of the scrivener. The general
It is true that this rule will not be enforced when it plainly appears from the will that the testator intended that the survivors of such legatees should take the whole fund bequeathed, as in Swallow v. Swallow, 166 Mass. 241, and Jackson v. Roberts, 14 Gray, 546, though the language of the court in the cases just cited and in Sohier v. Inches, 12 Gray, 385, shows that this limitation must be applied with some strictness. We find no sufficient circumstances in the case at bar to prevent the application of the general rule.
The result is that the contention of the respondent must be sustained and the decree of the Probate Court affirmed.
So ordered.