319 Mass. 67 | Mass. | 1946
The respondent appealed from the allowance of a motion to strike out his appearance against the allowance of the alleged will of Lizzie J. Burgess, late of Quincy. The judge made a report of the material facts found by him. G. L. (Ter. Ed.) c. 215, § 11. The testimony is reported.
The petition named a cousin of the decedent as the sole heir at law and next of kin. The respondent, a brother of Frank Burgess, the decedent’s late husband, rested his right to contest upon the ground of more favored treatment in an earlier will. The petitioner denied this right on the ground that the respondent would receive more under the will offered for probate than under any previous testamentary disposition.
There is no question' but that a will rightly may be contested by a legatee under a prior will who is given less or nothing under the instrument in question. He has a direct pecuniary interest which would be affected by the probate of the later instrument. Crowell v. Davis, 233 Mass. 136, 139-140. Conley v. Fenelon, 266 Mass. 340, 344. Reed v. Home National Bank, 297 Mass. 222, 223-224. The issue here is whether the respondent is entitled to invoke this rule.
Under the will offered for probate, which was dated August 17, 1943, the respondent was given a legacy of $10,000. At the date of the decedent’s death, September 10, 1944, the respondent was eighty-seven years and one month of age. His life expectancy was five and one tenth years. The amount of annual income purchaseable by $10,000 would be on a nonrefund basis $1,968.10. An annuity of $500 (given to the respondent under some of the instruments hereinafter mentioned) at the same age could
In a will of July 15, 1929, it was provided: “4. I give to my trustees hereinafter named Eighty-five thousand (85,000) dollars in trust to invest and reinvest the same and pay the net income therefrom in equal shares to my brother-in-law Charles H. Burgess and his wife Addie Burgess. On the death of either, the whole net income shall be paid to the one surviving, and on the death of both, said net income shall be paid to their son, Forrest R. Burgess, during his life, and when said Charles and Addie and Forrest are all dead the principal of said trust fund shall be paid over to the Young Men’s Christian Association of Quincy, Massachusetts.” There was also a provision (paragraph 45) that if she should make any gifts or advances to any beneficiary exceeding at one time $100, the bequest to such beneficiary should be diminished by the amount of such gifts or advances.
On August 27, 1930, Old Colony Trust Company and Clift Rogers Clapp executed a declaration of trust acknowledging that they held certain bonds of a face value of $191,000 and of a market value of $187,185, transferred to them by Lizzie J. Burgess, the donor, for the purposes, stated. The declaration of trust contained the following: “1. To manage, invest and reinvest said fund and pay from the net income therefrom and if necessary from the principal thereof the following sums: (a) To Charles H. Burgess of Dorchester, Massachusetts, and his wife Addie .M. Burgess two thousand five hundred (2,500) dollars each year to be paid to them in equal shares, and on the death of either the whole of said sum each year to the survivor for life, (b) To Forrest R. Burgess, son of said
It was said by Chief Justice Shaw in Richards v. Humphreys, 15 Pick. 133, 136, “If ... a testator, after having made his will, containing a general bequest to a child or stranger, makes an advance, or does other acts, which can be shown by express proof, or reasonable presumption, to have been intended by the testator as a satisfaction, discharge or substitute for the legacy given, it shall be deemed in law to be an ademption of the legacy.” See Page on Wills (3d ed.) § 1533. We think that the finding that the trust instrument was intended to be in substitution for the $85,000 trust fund is amply supported by the evidence. The respondent suggests that the trust instrument was a gift to the trustees and not to the respondent. But so in the same sense was the $85,000 trust fund. The technical form of the gift is unimportant. There were in evidence written “Instructions for the will” of July 15, 1929, bearing the signature of C. R. Clapp and reading, “The first column shows the amounts which Mrs. Burgess now intends to give during her lifetime — i.e. probably within a year, the 2nd column the amount to be given in her present will —to be diminished by such amount (i.e. 1st col) as she may give in her lifetime.” In a long list appeared the name of Charles H. Burgess, the respective amounts in the first and second columns being “60000” and “85000.” On July 7, 1930, the decedent wrote Mr. Clapp: “I would like to give the following amounts from Frank’s estate as soon as you can arrange it.
Chas. H. Burgess in cash 5 000.00
“ “ “ “ securities in trust — income only 25 000.00
Addie Burgess “ cash 5 000.00
“ “ “ securities in trust — - income only 25 000.00.”
Then followed proposed gifts to other beneficiaries, the total of those in trust being $160,000, and a statement, “The amounts marked in trust to go to the Y. M. C. A. (Quincy) as in my will.” On August 27, 1930, was executed the trust instrument, which showed that the decedent had
No new question is raised by later instruments. A will of May 4, 1932, contained the same provisions for Charles H. Burgess and his wife except that the principal sum to be added to the trust fund was increased from $30,000 to $40,000, while the annual payments remained unchanged. There also was a clause providing for the deduction of gifts or advances at any one tipie exceeding $1,000 except when by “written memorandum” she might indicate otherwise. In three wills datfed December 1, 1932, November 22, 1934, and February 18, 1936, the provisions for Charles H. Burgess and his wife remained the same. In a will of March 13, 1941, the provision for addition to the trust fund and for increased annuities was omitted, and instead there were bequests of $5,000 each to Charles H. Burgess and Addie M. Burgess. In so far as any of these instruments provide for an annuity of $500 the respondent would, as the judge found, receive less than under the instrument offered for probate.
The respondent contends that he might prefer to have $500 annually protected by a spendthrift clause, or to take under a will not procured by fraud or undue influence, or
Decree affirmed.