305 Mass. 532 | Mass. | 1940
This is a petition for instructions, brought in the Probate Court by the petitioner as administrator with the will annexed of the estate not administered of Catherine Murphy.
Catherine Murphy died at the Cambridge Hospital on April 2, 1913, as the result of ptomaine poisoning. On March 31, 1913, when she was an inmate in the hospital, an interne, at her request, wrote her will. It was written by lead pencil on a letter head of the hospital. It was duly executed by her on that day. Three physicians connected with the hospital signed it as witnesses. Omitting the signatures, the entire will was as follows: “Cambridge Hospital Cambridge, Mass., 3-31-1913 For Home of Destitute Catholic Children I give devise & bequeth all my property at Randall Hall containing money & clothing and also property at Richardson store house Tremont St. Boston, comprising 3 (three) trunks after all other legal bills & expenses have been paid.”
The petitioner seeks instructions as to whether a savings bank account
On April 29, 1913, two attorneys, since deceased, were appointed special administrators of the estate of Catherine
The same attorneys on September 26, 1913, were appointed administrators of the estate of Angelina Murphy, and on December 30 of that year they swore to and filed an inventory with a single item, showing a deposit in the Boston Five Cents Savings Bank of $1,789.51. Four years later, on October 18, 1917, the administrators of the estate of Angelina Murphy signed and swore to a first and final account. It showed the receipt by them of the amount stated in the inventory which, with interest, amounted to $2,165.28, a payment to them for services and disbursements, and the amount of $1,900 turned over to themselves as administrators with the will annexed of the estate of Catherine Murphy. The account in the bank, however, in fact continued to remain in the name of Angelina.
From that time on, for a period of twenty years, it does
1. The cousins of Catherine Murphy contend that she, at the time of her death in 1913, did not, as the sole next of kin of her mother, have such an interest in the savings bank account standing in the name of her mother that she could dispose of it by will. It is true that when a person dies, either testate or intestate, the title and right to possession of his personal property are vested in his personal representative when appointed, S. S. Pierce Co. v. Fiske, 237 Mass. 39, 41; Hobbs v. Cunningham, 273 Mass. 529, 533, but the right to share in the personal property, subject to the payment of debts and charges of administration, vests upon the death, in the next of kin or legatees. Magee v. Commissioner of Corporations & Taxation, 256 Mass. 512, 516. McInnes v. Spillane, 282 Mass. 514, 516. Miller v. Parish of the Epiphany, Winchester, 302 Mass. 323, 327. Subject to the claims of creditors and to administration expenses, such a right may effectively be disposed of before settlement of the estate by assignment, Security Bank of New York v. Callahan, 220 Mass. 84, 87, or by will. Angell v. Springfield Home for Aged Women, 157 Mass. 241, 245. Catherine could by will effectively dispose of her interest, as sole heir of her mother.
2. The will was drawn by a layman, in a hospital, in the last few days of the fatal illness of the testatrix, and her intent is not expressed in her will with the legal precision, or with the quantity of words, which might be expected if its drafting and execution were under different circumstances. We think, however, that its language sufficiently indicates the intent to give all she possessed to the legatee
The language of the will indicates that the testatrix thought she was disposing of all her property, and a construction resulting in a partial intestacy is not to be adopted where, as here, such a construction is not required. Pickering v. Young, 282 Mass. 292, 293-294. Hull v. Adams, 286 Mass. 329, 334.
The decree is affirmed. Costs and expenses of this appeal may be allowed to the parties or their counsel in the discretion of the Probate Court.
Ordered accordingly.
This account was described in the petition as “a bank account in The Boston Five Cents Savings Bank standing in the name of Angelina Murphy who was the mother of said Catherine Murphy.” — Reporter.
It appeared from the record that this account was not the account to which the petition relates. — Reporter.