2 Mass. App. Ct. 348 | Mass. App. Ct. | 1974
William Vinick and Rose Fishman Vinick, husband and wife, executed a j'oint will in 1954. Rose died in 1969, William a year earlier. The instrument was admitted to probate as Rose’s will. Her brother Frederick Fishman (Frederick), who is residuary legatee
Among the dispositive provisions of the will, a clause appointing Frederick executor without surety on his bond and designating him sole residuary legatee is bracketed between provisions applicable in the event that William and Rose should die as a result of a common disaster, an event which did not materialize. Based upon the configuration of the residuary clause in relation to the provisions pertaining to a common disaster, the respondent next of kin deduce that it was Rose’s intention that the provisions of the residuary clause would become operative only upon the occurrence of a common disaster. We disagree.
The rule is fundamental that the intention of the testator must be ascertained from the whole instrument, attributing due weight to all its language considered in the light of the circumstances known to him, and effect must be given to that intent unless some positive rule of law forbids. Fitts v. Powell, 307 Mass. 449, 454 (1940). Wheeler v. Kennard, 344 Mass. 466, 469 (1962). Viewing the instrument as a whole, we discern as Rose’s intention that the provision for the disposition of the residue should be operative independently of the conditions expressed in the event of a common disaster.
It is obvious that the draftmanship of the will is a product of an intelligent but inexpert hand. Nonetheless, its meaning is not ambiguous. The fact that the residuary clause appears in an odd position within the instrument is immaterial where the testatrix’s intention is otherwise clear. “[I]t is familiar law that the grammatical construction, or the order of particular sentences, is never allowed to defeat the general intention of the testator, as clearly manifested by all the provisions of the will
Decree affirmed.
