Harris v. Knapp

38 Mass. 412 | Mass. | 1839

Shaw C. J.

delivered the opinion of the Court. The question presented in this case is, whether the complainant, Mrs. Harris, by force of the bequest made to her by the will of her mother, took any thing more than the right to receive of the executor, the annual income of the sum left, or whether the principal sum was so left, that she herself, in her own name, or jointly with her husband, or the husband alone, could dispose of the principal sum. It is immaterial to the purpose of the present inquiry, whether the bequest is to be considered as an absolute gift to the wife, in the same manner as if there had been no limitation over, so that the husband could forthwith reduce the same to possession and claim to have the whole paid over to him ; or whether it is to be considered as a bequest of the income only, to the wife, with a power to the wife to dispose of the principal, in part or in whole, during her lifetime, with a contingent bequest over, to the daughters, of the remainder, in case any part should remain undisposed of by the wife. It is immaterial, because, in either of these views, the husband having joined with the wife, in the appointment to their daughter, Dorothy, the respondent would be bound by such appointment. But the respondent contends that this bequest is neither an absolute one, nor does it confer a power of appointment and disposal upon the wife, in her lifetime, but that it is a gift of the income only to the wife, during her life, with a gift of the whole of the principal to her two daughters after her decease, and that the executor is constituted a trustee, to hold the fund, to meet and accomplish these purposes of the will. This is the question which has been discussed and considered.

The Court are of opinion, that the construction contended for by the respondent is not the true and correct construction of the will. Such a construction would render several of its clauses nugatory, and without force or effect. The words “what shall remain,” in the clause of the will cited, have different meanings, in the two instances in which they are used. In the first, they embrace all her personal estate, including the proceeds of the real, after the payment of debts and specific legacies. One half of this property she gives to her daughter Mary Harris, then and still a married woman, for her use and disposal during her life; and whatever shall remain at her death, she gives the same to her two granddaughters. In this last case, the words “ whatever shall remain,” necessarily mean that portion of the property bequeathed, which shall be undisposed of at her decease ; but there is no allusion in the will to any mode, by which the sum thus given is to be diminished, except the disposition thereof, to be made by Mrs. Harris; and therefore the implication is inevitable, that she had a power to make such disposition. This is inconsistent with the supposition, that the whole was to remain undiminished in the hands of the executor, or other trustee, for the purpose of satisfying the gift over.

Again, upon the supposition that this was a gift of the interest only, to the wife, without power of any sort over the principal, the words, “for her use and disposal,” applying as they do, to the principal sum itself, would be wholly nugatory. So far from being nugatory, we think they indicate an intent on the part of the testatrix, that her daughter, who was one principal object of her bounty, should either have this property to her own use, with a contingent gift to the grandchildren, in case it should specifically remain at her decease, or that the daughter should have a power of appointment and disposal of the principal, in the hands of the executor as trustee, with a like contingent gift to the grandchildren, and that it was not the intent of the testatrix to place the whole capital in the hands of the executor in trust, to invest it and pay the income only to the daughter during her life, and then the whole principal to the grandchildren. Were this a question between the husband, claiming this as an absolute gift, accruing to him as husband, and the appointee of the wife, claiming as upon the execution of a power, which by law a wife may execute notwithstanding her coverture, it would require further consideration. But as the husband and wife have both joined in the appointment under consideration, the Court are of opinion, that the executor was bound to pay over the principal pursuant to that appointment, and that the complainants are entitled to a decree accordingly.

Costs for the complainants, to be paid out of the funds.