212 Mass. 148 | Mass. | 1912
This is a bill for instructions by the administrator de bonis non with the will annexed of William Litchfield, late of Lexington. The testator died on March 4, 1904, leaving a widow but no issue. The will is dated January 30, 1900, and after providing for the payment of his debts specifically devises to the testator’s niece, Ida B. Litchfield, two parcels of real estate with limitations over in case she leaves no issue; and to his wife all his furniture, glass, silverware, books, pictures and articles of use and ornament. Certain provisions as to his burial lot follow, and then comes the fifth clause which we quote:
"Fifth. All the rest and residue of my estate, of whatever name or nature and wherever the same may be, or be situated, I give, devise and bequeath unto my wife, Nancy J. Litchfield; to have and to hold during her natural life. And she shall be entitled to have and receive the rents, income, interests, dividends and profits from said rest and residue during her natural life, precisely the same as I myself might do, were I living; and giving my said wife full power to sell, exchange, invest and reinvest the same (except the three houses I hereinafter devise to the ‘Winchester Home for Aged Women,’ and the three hereinafter devised to the ‘Perkins Institution and Massachusetts School for the Blind’ which I do not wish sold or exchanged for twenty years at least). But should she deem it necessary, or in her best judgment think it best to sell, and give a good and sufficient deed of any property other than the six estates above mentioned and the two estates above devised to my niece Ida B., within named, she is at liberty to do so. At her decease I give, devise and bequeath said.rest and residue as follows:”
Next come (also as a part of the residuary clause) specific devises of real estate to the Perkins Institution and Massachu
The specific devises and legacies and the legacies and devises given in the residuary clause do not dispose of the entire estate, and the question is whether there is an intestacy as to what is not disposed of, and if not, where it goes. The heirs at law and next of kin of William Litchfield, the testator, contend that it is intestate property and goes to and should be divided amongst them. A subsidiary question on this branch of the case is whether in that event the widow takes as a statutory heir. The executor of the will of the widow and the legatees and devisees named therein contend that it passed under the terms of the will to her and should be disposed of as a part of her estate. The charitable institutions and corporations named in the residuary clause contend that it should be divided amongst them pro rata in augmentation of the pecuniary legacies and specific devises given to them.
We take up this last contention first. The ground on which it is urged is that the will shows an intention on the part of the testator to devote the rest and residue subject to the widow’s life estate to charitable purposes, and that a case is therefore presented for the application of the doctrine of cy pres and that a disposition
It is plain, we think, that the widow took only a life interest in the rest and residue. The language is: “All the rest and residue of my estate ... I give, devise and bequeath unto my wife, Nancy J. Litchfield; to have and to hold during her natural life. ... She shall be entitled to have and receive the rents, income, interests, dividends and profits from said rest and residue during her natural life, precisely the same as I myself might do, were I living.” Then follows a power to sell, exchange, invest and reinvest subject to certain exceptions, and “at her decease,” the tes
The only question that remains is whether the widow shared in the intestate property as a statutory heir. A legacy or devise to one who is an heir at law or a statutory heir will not prevent him from taking as heir at law or as a statutory heir in case of a partial intestacy unless it is manifest from the whole will that there was an intention to exclude him on the happening of such an event. Johnson v. Goss, 132 Mass. 274. Jones v. Gane, 205 Mass. 37. Walton v. Draper, 206 Mass. 20. In the present case we think that it appears from the will taken as a whole that the testator intended the provision which he made for his widow to be a full and final provision for her. He specifically bequeathed to her all his “furniture, glass and silver ware, books, pictures and articles of use and ornament.” Then he directed that she should have the rents, income, interests, dividends and profits from the rest and residue “during her natural life, precisely the same as I myself might do, were I living”; and added to this “full power to sell, exchange, invest and re-invest the same,” and in conclusion provided for the disposition of the rest and residue at her decease. The unavoidable inference from this is, we think, that he intended that she should have the entire "use, benefit and improvement of the
The result is that that portion of the estate which is undisposed of will go to and be divided and distributed amongst the heirs at law of William Litchfield.
So ordered.