229 Mass. 267 | Mass. | 1918
The main question involved in this bill for instructions as to the construction of the will of Andrew R. Winslow is, whether in the first article of the codicil to his will he gave to Amelia Ann Greene, Mary Elizabeth Whitaker, Charles N. Winslow and the issue of Wanton T. Sherman one bequest to them as a class or separate bequests to each of them. Charles N. Winslow having died after the date of the codicil and before the death of the testator, leaving no issue, his legacy lapsed and passed into the residue, if it was a separate legacy. R. L. c. 135, § 21. Howland v. Slade, 155 Mass. 415. If the gift was to a class, the legacy of Charles N. Winslow went to the survivors.
The first article of the testator’s codicil to his will provided that, “Whereas in my said will by the first clause thereof I did give and bequeath all my stocks and bonds and money in savings banks to be equally divided between my cousins Wanton T. Sherman, Amelia Ann Greene, Mary Elizabeth Whitaker and Charles N. Winslow; . . . and whereas said Wanton T. Sherman ,has since died, leaving issue; I therefore hereby revoke said first clause of said Will, and in place thereof I give and bequeath unto my said cousins Amelia Ann Greene, Mary Elizabeth Whitaker, and Charles N. Winslow, and to the issue of said Wanton T. Sherman, stocks and bonds to the amount of one hundred thousand dollars, to be equally divided between, them, the issue of said Wanton T. Sherman taking the share he would have taken, if living.”
It is a well recognized rule that when there is a gift to several legatees described by name, of an aggregate sum to be divided equally among them, if one dies before the testator, his share will lapse. Emerson v. Cutler, 14 Pick. 108, 114. Workman v. Workman, 2 Allen, 472. Best v. Berry, 189 Mass. 510. Sohier v.
This rule will not be enforced when it is clear that the testator intended that the persons named were to take the fund bequeathed as a class and not as individuals, and the survivors of the legatees named should take the whole fund bequeathed. Best v. Berry, supra, and cases cited.
Where the recognized rule has not been followed, it will generally be found that the testator, taking the will as a whole, manifested an intention to give one fund to a single class or group of persons and did not intend a gift to each one individual absolutely, that he had in mind, not the individuals of the class, but the class itself as the object of his bounty, and intended to benefit all of the class who were left at his death rather than to benefit them individually, the court in such cases, deciding that the legacy was to a class, merely carried out the intention of the testator. Schaffer v. Kettell, 14 Allen, 528. Stedman v. Priest, 103 Mass. 293. Meserve v. Haak, 191 Mass. 220. Loring v. Coolidge, 99 Mass. 191. Jackson v. Roberts, 14 Gray, 546. Smith v. Haynes, 202 Mass. 531.
The fact, that the testator inherited a certain stun from his father and that the legatees mentioned in the first clause of the codicil were his only cousins on his father’s side, is not enough, together with the other facts and circumstances stated in the agreed facts, to overcome the presumption that the gift was to the legatees as individuals.
The legatees were ascertained and described by name and were not so mentioned merely for the purpose of fixing the class membership. The testator gave to certain persons by name, who were so designated as to be fixed at the time of the gift. It was a legacy to them as individuals and not to them as a class, and the legacy to Charles N. Winslow therefore passed to the trustee under the twelfth article of the codicil. It follows that the legacy of $100,000 is to be divided as follows: $25,000 is to be paid to Josephine W. Whitaker daughter of Mary Elizabeth Whitaker, $25,000 is to be paid to the executor of the will of Amelia Ann Greene, $25,000 is to be paid in equal shares to Joseph B. Sherman and Henry W. Sherman, the issue of Wanton B. Sherman, and $25,000 is to be paid to the plaintiff under the twelfth
In the first article of the codicil the testator bequeathed stocks and bonds to the amount of $100,000 to the legatees there mentioned. This was a general and not a specific bequest. Johnson v. Goss, 128 Mass. 433. Parker v. Cdbe, 208 Mass. 260. At the time of his death the testator owned stocks and bonds in 'excess of $100,000. The legatees, therefore, are entitled to stocks and bonds equal to the amount of their legacies at their fair market value as of the time of the transfer, Thayer v. Paulding, 200 Mass. 98, Fisk v. Cushman, 6 Cush. 20, 27, 28, with interest on the amount due them from January 21, 1917, one year after the death of the testator, at the rate of four per cent per annum, to the time of the transfer to them of the stocks and bonds. St. 1915, c. 151, § 2. See Gilbert v. Bachelder, 223 Mass. 329; Daniels v. Benton, 180 Mass. 559; Ogden v. Pattee, 149 Mass. 82; Kent v. Dunham, 106 Mass. 586.
Plaintiff to be instructed accordingly.