260 Mass. 584 | Mass. | 1927
It was decided in Brown v. Tuckerman, 255 Mass. 347, that the one half interest in trusts created by the will of Walter Heywood belonging to his daughter Nellie H. Corey, upon her death intestate and without issue on September 17, 1877, passed to her surviving sister, Rosa H. Brown; and, after the death of the latter, August 23, 1923, was to be paid over by the trustee under the will of Walter Heywood to the executors of her will.
These executors now ask to be instructed whether the property received under the provisions of the trusts of the will of Walter Heywood can properly be regarded as forming part of the residue of the estate of Rosa H. Brown and as passing to the persons and in the proportions provided by her will therefor; and to whom and in what proportions the property received by Mrs. Brown as heir of Nellie H. Corey under said provisions shall be distributed, or whether it passes by intestacy.
The cause is before us upon an appeal by the heirs at law of Mrs. Brown from a decree of the Probate Court, which instructed the executors that the property is not intestate, but is to be treated as forming part of the residue of Mrs. Brown’s estate to be distributed in accord with the residuary clause of her will.
Rosa H. Brown executed her last will on February 16, 1912, and in 1913, 1916, 1917 and 1918, made codicils which were admitted to probate with the will on September 18, 1923. Her heirs at law were three first cousins — Mrs. Tuckerman and Miss Lucy B. Heywood, on her father’s side,
It is unnecessary to decide whether these contentions a*re sound in law until we know whether they are sound in fact. The burden of establishing the facts is upon the claimants. The only evidence submitted to the judge of probate was the pleadings, the will and codicils, and a letter addressed to Miss Heywood dictated by Mrs. Brown on or about October 8, 1921, and by her order delivered to Miss Heywood after Mrs. Brown’s death.
The pleadings recite relationships and assert claims. Nothing in them establishes the limits of Mrs. Brown’s knowledge or belief in regard to this property. The fact appears that the question of what rights she had in the property held under the trusts of the father’s will, was not presented for judicial determination until after her death; but it nowhere appears that she was ignorant that such a question existed, or was without opinions of her own in regard to the answer. Statements in the will and one of the codicils are not conclusive. The will, by its tenth and eleventh items, gave forty shares of a certain stock each to Mrs. Tuckerman and Miss Heywood. The first codicil cut down these gifts to twenty-five shares each, and stated "as they will now benefit largely under the terms of my father’s will,” seemingly as a reason. Item twelve of the
The letter was inadmissible in evidence had objection been made, Whitman v. Whitney, 225 Mass. 213; S. C. 228 Mass. 18; but, having been admitted without objection, it is to be weighed with the other evidence. Written more than nine years after the will and eight years after the codicil which interested Miss Heywood, it explains the reason and purpose of the gifts to her and to Mrs. Tucker-man. It ends: “I might have given you more by my will had I not known the property left in trust by father’s will would at my death go to my nearest relatives. At this time there being only three first Cousins. You and Lillie [Mrs. Tuckerman] and Nellie Cushing on my mother’s side.” Although this justifies an inference that she supposed the entire property left in trust by her father’s will would pass by force of that will to the cousins named, it does not require that conclusion. It does not state that she would have given more or differently had she known that only half that entire property would so pass to them.
Neither pleadings, wills, codicil, or letters, nor all of them taken together, compels, as matter of law, a finding that she was ignorant of the true status of the property; that she
The decree of the Probate Court can be upheld on the ground that the appellants had failed to establish the facts which form the foundation for their contention.
Nothing appears on the face of the will and codicils to indicate that Mrs. Brown held property which the will was not intended to dispose of. Had Mrs. Corey died after the will and codicils were executed, without question the interest received as a result of the death would have fallen into the residue.. Compare G. L. c. 191, § 19. Hill v. Bacon, 106 Mass. 578. Thayer v. Wellington, 9 Allen, 283, 295. It would have been immaterial that the testatrix died ignorant that the property had come to her. Lindsay v. Wilson, 103 Md. 252. No distinction is to be made between ignorance of the existence of property and ignorance of details in the nature of the title to known property, unless the will shows that such ignorance has affected the disposition made.
Partial intestacy is not favored by the law. Taft v. Stearns, 234 Mass. 273, 277. There is a presumption that the testator intends to dispose of all that he has. Bushby v. Newhall, 212 Mass. 432, 433. The case is controlled by the decision in Whitman v. Whitney, 228 Mass. 18, 23, which held that a mistaken belief that the testatrix did not own an interest in a trust fund could not be shown to render the property intestate and to affect the validity of residuary bequests.
It follows that the decree was right. It is affirmed with costs' to be taxed as between solicitor and client in the discretion of the Probate Court.
So ordered.