213 Mass. 117 | Mass. | 1912
The testatrix at the date of the will and of her death had no money deposited in the Worcester Five Cents Savings Bank, which is enumerated among the savings banks in the second clause, but she did have a deposit in the Worcester County Institution for Savings. It is the first contention of the appellant that extrinsic evidence was not admissible to show a misdescription and that the testatrix intended to designate the latter, instead of the former, bank.
A literal interpretation would defeat her express purpose of giving the moneys in three savings banks doing business in a certain municipality to the legatees named, and her intention, which must govern, may be evidenced by all the circumstances concerning the nature and place of deposit of the specific property bequeathed. The identity of the banks could thus be shown as. well as the identity of the legatees where upon applying the will doubt arises from the name or description as to the person or persons who the testator intended should share in his estate. The provisions of the will are unchanged, but it is to be read and applied in the light of the facts under which the testatrix is presumed to
It next is contended that the legacies given by this clause are general, and, there having been an insufficiency of assets, the amount in the banks, which the parties agree would have been sufficient at her death to have paid the legacies, could be used by the executor for the payment of debts and the charges of administration until it had been exhausted.
The purpose of the testatrix, however, is plain to give these deposits in the proportions specified; and if the total amount had proved to be inadequate, no direction is found for their payment from the residue of the estate, and the bequest is to be read as if she had said, “My moneys deposited in these banks are to be divided between the legatees,” stating the sum each should receive. A particular fund or portion of her estate having been set apart and appropriated with no further provision for their payment, the legacies cannot be treated as general or demonstrative, but should be classed as specific. White v. Winchester, 6 Pick. 48. Wilcox v. Wilcox, 13 Allen, 252, 256. Towle v. Swasey, 106 Mass. 100, 106. Farnum v. Bascom, 122 Mass. 282, 285. Johnson v. Goss, 128 Mass. 433, 435, 436. Boston Safe Deposit & Trust Co. v. Plummer, 142 Mass. 257, 262. Harvard Unitarian Society v. Tufts, 151 Mass. 76, 78. Porter v. Howe, 173 Mass. 521, 526. Thayer v. Paulding, 200 Mass. 98. Armstrong’s appeal, 63 Penn. St. 312, 316.
The gift to the appellant and his wife in the first clause of “all my money deposited in the Milford Savings Bank” is also specific. Towle v. Swasey, 106 Mass. 100. And although they are named as residuary devisees and legatees, the remainder of the estate, after the pecuniary legacies and the previous devise to them of “all of my real estate in equal shares” have been satisfied, is trifling. But, while if necessary all of the property must be applied in payment of the testatrix’s debts and to defray the expenses of settling the estate, it appears from the agreed facts that only a portion of the personal property will be required. The specific legatees therefore must contribute to the deficiency in proportion
The questions presented by the appellant are disposed of by what we have said, and, the computations of the account as allowed not being in dispute, the decree of the Probate Court should be affirmed.
Ordered accordingly.