275 Mass. 498 | Mass. | 1931
This is a petition for instructions by the executor of the will of Amelia G. Dyer who died July 4,1928. In the sixteenth clause of her will the testatrix gave to her nephew, John Baker, hereinafter referred to as the legatee, “all of my stock in the Standard Oil Company of New York and the Standard Oil Company of New Jersey.” Instruc
It was, agreed that at the time of the execution of the will the testatrix owned one hundred ten shares of the seven per cent, preferred stock of the Standard Oil Company of New Jersey; that this stock was callable at $115 a share and accrued dividend and was called for payment by vote of the directors on November 15, 1926. To meet this call debentures totalling $120,000,000 were to be issued; these debentures were sold to bankers in New York. The bankers agreed to give the holders of the stock a preferential right to subscribe for-these debentures. The testatrix sent to the bankers her one hundred ten shares of stock, subscribing.for a «sufficient number of debentures to absorb the stock. The issue of the debentures was oversubscribed; accordingly, there was allowed to Mrs. Dyer seven of these debentures in payment for sixty-two shares of stock. The remainder of her stock was redeemed by the New Jersey company. At the .time of her death Mrs. Dyer owned the $7,000 of debentures.
There was no stock of the Standard Oil Company of New Jersey in the estate of the testatrix when she died. Her stock in that company had been taken up by the payment 'in cash from the New Jersey company, and the debentures which had been purchased by the bankers and transferred to her by these bankers in exchange for sixty-two of her shares. ■ The debentures came to her, not from the New Jersey company but from the bankers who were the owners of them. In these circumstances the legacy of the stock of the Standard Oil Company of New Jersey was adeemed. The legacy of the specific thing had been disposed of by the testatrix before her death. The ease cannot be distinguished from Moffatt v. Heon, 242 Mass. 201, where it was held that the specific legacy of a ".mortgage which was paid before the death of the testator had been adeemed. In that cáse the authorities are reviewed and this quotation from Tomlinson v. Bury, 145 Mass. 346, 348, .appears at pages 203-204: “If
The legatee relies on Pope v. Hinckley, 209 Mass. 323. In that case the testator, at the date of his will, owned a number of shares in a New-Jersey corporation. After the date of his will and codicil this corporation passed into the hands of receivers. A new corporation under the laws of Connecticut was formed to take over the business of the New Jersey corporation. Pending receivership proceedings the testator deposited his stock in the New Jersey corporation with a trust company which issued to him trust certificates to be exchanged, and which eventually were exchanged for stock in the Connecticut corporation. This exchange was not made during the lifetime of the testator, but was made by his executors shortly after his death. By his will the testator gave numerous legacies of shares in the New Jersey corporation. It was held that the legacies were to-be satisfied by the transfer to the various legatees to whom they were given of the “number of shares of preferred and common stock in the Connecticut corporation to which the testator would have béen entitled by virtue of the number of first preferred shares in "the New Jersey corporation named in such legacies.” It was-said in that case at page 328: “it is immaterial whether the legacies are to be regarded as general or specific, though they would seem to be general rather than specific.” Pope v. Hinckley in no way supports the legatee’s contention. The testator there held the stock in question in the New Jersey corporation at the time of his death, and although the corporation had been dissolved, his right to the stock in the Connecticut corporation depended “upon his continued recognition as a stockholder in the defunct corporation.” Page 327.
Tomlinson v. Bury, 145 Mass. 346, is not in conflict. The question in that case was whether the plaintiffs, whose legacy
We do not think it necessary to discuss the cases from.other jurisdictions, cited by the legatee. In many of them the facts are different from those in the case at bar; in so far as the decisions appear to bo contrary to the conclusion we have reached, we must decline to follow them. We do not decide what would have been the rights of the legatee if the testatrix, in substitution of her stock in the New Jersey company, had received the debentures directly from that company. That question does not arise and we make no intimation regarding it.
In the Probate Court counsel for the residuary legatees waived all claims for costs and expenses. There was awarded to the legatee Baker the sum of $350 as costs and expenses, payable from the estate of the deceased. The residuary legatees appealed from the portion of the decree awarding costs to Baker. This appeal was dismissed because of their failure to pay the cost of printing within the time required by law. Baker filed a general appeal. Even if it be assumed that the question of costs as allowed by the Probate Court is before us, see Manheim v. Woods, 213 Mass. 537, 545; Day v. Mills, 213 Mass. 585, 588; Hilton v. Hopkins, ante, 59, there was no abuse of discretion in allowing costs to the
The decree is affirmed.
Ordered accordingly.