169 Mass. 82 | Mass. | 1897
The eighth clause of the will is as follows: “ In addition to the aforesaid bequests, payable at my decease as aforesaid, I give unto said wife, sons, and daughter in law Elizabeth M. Hammond, as guardian of my grandchild Walter Edward Hammond, for each of the four succeeding years the following sums, to be paid to them in annual payments and as follows: to my wife Ellen M. Hammond as aforesaid the sum of five hundred dollars, to my son Walter W. Hammond as aforesaid the sum of one thousand dollars, to my son Edward A. Hammond as aforesaid the sum of four hundred dollars, to my son Henry D. Hammond as aforesaid the sum of three hundred dollars, to my daughter in law Elizabeth M. Hammond as guardian of my grandson Walter E. Hammond aforesaid the sum of three hundred dollars, making the total amounts of said payments during the said term of four years ten thousand dollars, the interest on any portion of same accruing during said term shall be paid to my wife Ellen M. Hammond aforesaid annually should she live and remain my widow, the same conditions to be understood in regard to all the aforesaid gifts to my wife Ellen M. Hammond as aforesaid.”
Even if there were no express provision in regard to payment, the division of the legacies to each of his children into five equal parts, one to be paid in each year, would be an indication that they were to be paid from income, rather than from the principal of his estate. In Cummings v. Cummings, 146 Mass. 501, it was said that “ the very nature of an annuity suggests, when those charged with the payment of it have in their hands a fund producing income sufficient to pay it, that the payment should be made from the income, and not from the principal.” See also Treadwell v. Cordis, 5 Gray, 341, 351.
A majority of the court are of opinion that the four payments to the sons and grandson should be made out of the income, if that is sufficient. The codicil says nothing about the annual payments to the wife of the testator, and these must be paid from the capital. The balance of the income, if any, after the payments to the children and grandchild, is given to her in addition to the annual payments of $500.
The executors are entitled to retain income to make good the payments which they have made to the wife by mistake. As she was receiving the whole income, and thus was throwing the burden of the payments to the children upon capital, and diminishing a fund which belonged to others, it seems proper that she should make the loss good. Livesey v. Livesey, 3 Russell, 287. Dibbs v. Goren, 11 Beav. 483. See Crocker v. Dillon, 133 Mass. 91.
8o ordered.