224 Mass. 534 | Mass. | 1916
Under the will of his mother, James C. Merrill was entitled to a fund upon the death of his sister, the life tenant. Upon the death of the sister in 1912, the fund in question was paid to the plaintiff as the administrator with the will annexed of James C. Merrill’s estate. The question presented by this bill for instructions arises under the third and fourth clauses of his will,
Then comes the fourth clause. That clause provides: “And my will further is that if at any time after one year from the time of my decease, no child of mine shall be surviving my said executrix shall use all the said estate for her sole and separate use and benefit in all respects as she shall think best (both principal and interest) and may dispose of the same by will, but in case she should die after the death of all my children and shall not have disposed of all my said estate by will or otherwise” the residue shall be divided equally between his sisters, naming them, with some qualifying words.
The provision as to waiting for one year after the decease of the testator was manifestly inserted to cover the period of gestation. This clause begins as if it were an independent clause, making a new disposition of the residue without regard to the disposition of it made in the third clause. But if the clause is
The events which have taken place are these: The testator died in 1869. His estate (both real and personal) was exhausted ■ in paying his debts.
The fact that the fourth clause, if construed as an independent gift, results in there being two inconsistent gifts of the residue after the life estate of the testator’s widow shows that the fourth clause cannot be so construed. Construed in connection with the third clause the testator’s intention seems to be pretty plain. Moreover these two clauses are to be construed in the light of the fact that the will is in the testator’s own handwriting and apparently was made by him without consultation with counsel. Putting ourselves in the testator’s place when this will was made by him, and under the circumstances which existed at the time it was executed, What was his intention? It is plain that the testator first said: I wish my wife “during her life” to have the income of the residue of my estate with a power to use the principal for “the best interest of my children at her discretion;” after her death I wish “the residue to be divided equally among my children.” But if either of my children shall have died before receiving his or her share of my estate and shall have left a child or children
It seems pretty plain that the fourth clause was intended by the testator to be thus read in connection with the third clause. But even if this clause is not to be read in detail in that way, the mere fact that the fourth clause construed as an independent gift results in a conflicting disposition of the residue .after the death of the testator’s widow, is of itself enough to show that the fourth clause must be construed in connection with the third clause and the same result is reached.
The correctness of this result has not been seriously questioned by the widow of the testator’s son. Her contention is that the gift made to the widow of the testator in the fourth clause is an absolute gift of the residue of the testator’s estate, and if that be so, the gift over of the residue to the sisters of the testator is void under the doctrine of Ide v. Ide, 5 Mass. 500, affirmed in Galligan v. McDonald, 200 Mass. 299. For a later case, see Sherburne v. Littel, 220 Mass. 385, 388.
Therefore the question which we have to decide comes down to the question of the construction of the gift to the widow of the testator contained in the fourth clause.
The argument of the learned counsel for the son’s widow (the executrix of his will and the sole legatee under it) is that the rule of Ide v. Ide is law. Of that there is no doubt. But that is not the question which we have to decide. The question which we have to decide is whether the gift to the testator’s widow comes within that rule. The rule of Ide v. Ide is that where the first gift is a gift of the whole property (that is, an absolute bequest of personalty or á devise in fee of real estate) the gift over is bad. The question we have to decide is whether the gift to the testator’s widow contained in the fourth clause is such a gift. We are of opinion that it is not. We have examined all the cases relied on by him.
The widow of the son has in effect made the further contention that a gift of a life estate, with an absolute power to the life tenant of disposing of the principal during her life and at her death by will, amounts to a fee, and for that reason this case comes within the doctrine of Ide v. Ide, ubi supra. But that is not so. It is within the power of a testator to give property to another for life with full power of disposing of the principal during his life and by will at his death, and yet what is given is a life estate coupled with a power and not an absolute gift of personal property, or a devise in fee of real estate. Dana v. Dana, 185 Mass. 156. This is not the only instance in the law where a conveyance or devise is valid if properly drawn, while a conveyance or devise improperly drawn which accomplishes the same practical result is void. For example, it is settled that a conveyance or a bequest by a husband to his wife so long as she shall continue to be his widow with a gift over in case she marries again is valid, while a conveyance or devise by a husband to his wife upon condition that she does not marry again with a conveyance over if she does marry again is void.
The result is that, subject to the right of the widow of the testator to her statutory rights, the residue is to be paid over by the plaintiff, one half to the executrix of the will of Matilda E. Adams (the sister called in the fourth clause Matilda E. Merrill) and the other half to the administrator of the estate of Anna S. Ward (the sister of the testator called in the fourth clause Anna S. Merrill) or, there being no contention on the point, this half may
. So ordered.
The case was reserved by Loring, J., for determination by the full court. The third and fourth clauses of the will were as follows: “In the second place, I give, devise and bequeath to my said executrix, all the property real, personal or mixed of which I shall die seized and possessed or to which I shall be entitled at the time of my decease, (except what may be necessary for the payment of my just debts and funeral expenses as above provided for) to have and to hold the same to her sole and separate use and benefit, or for the best interest of my children at her discretion, during her life, and after her death the residue to be divided equally among my children for their sole and separate use and benefit; and in case either of my children shall have died before receiving his or her share of my said estate and shall have left a child or children surviving that portion of such deceased child shall be divided equally among his or her surviving children according to the right of representation; but if such deceased child shall have left no child sur
“And my will further is that if at any time after one year from the time of my decease, no child of mine shall be surviving my said executrix shall use all the said estate for her sole and separate use and benefit in all respects as she shall think best (both principal and interest) and may dispose of the same by will, but in case she should die after the death of all my children and shall not have disposed of all my said estate by will or otherwise that the residue thereof shall be divided equally among my sisters, Anna S. Merrill and Matilda E. Merrill, (or be given to the survivor of them in case either of them shall die without leaving children) for their sole and separate use and benefit and that of their children.”
The fund which was the subject of the controversy consisted of about $13,000 of personal property which came to the administrator de bonis non with the will annexed of the estate of James C. Merrill, long after the death of his testator, under a trust created by the will of Anna S. Merrill, the mother of James C. Merrill.
The cases here referred to are: Burbank v. Whitney, 24 Pick. 146; Tracy v. Kilborn, 3 Cush. 557; Damrell v. Hartt, 137 Mass. 218; Sherburne v. Sischo, 143 Mass. 439; Joslin v. Rhoades, 150 Mass. 301; Foster v. Smith, 156 Mass. 379; Hunting v. Damon, 160 Mass. 441; Knight v. Knight, 162 Mass. 460; Kelley v. Meins, 135 Mass. 231; Galligan v. McDonald, 200