128 Mass. 433 | Mass. | 1880
This is a bill in equity in "which the administrator with the will annexed of the estate of Daniel Goss asks the instructions of the court as to the construction of the will and
1. After providing for the payment of debts and funeral expenses, the will contains the following clause: “I devise and bequeath to my wife, C. A. Goss, all my personal property, my household effects, horse and carraiges, my life insurance in the Mutual Life Insurance of New York, and two mortgages on real estate by Orison H. Welch in Clinton, and one mortgage on Horatio Bailey of Lancaster, and also the bank stock I hold in the First National Bank of Clinton, to hold for her own benifit as dong as she lives (and wave all dowery) in a manner that shall be devided equal among the heirs at her deceased.”
The guardian of the widow contends that this is a residuary bequest of all the personal property which may remain after the other bequests in the will are satisfied. But we are of opinion that this was not the intention of the testator. It is clear beyond doubt that he did not intend to use the words “ all my personal property ” in their ordinary sense, because he proceeds to give to his wife and other legatees large portions of his invested and productive personal property. The language does not purport to bequeath the residuum of his property, and, construing it in connection with the words immediately following, “ my household effects, horse and carriages,” we think his purpose was to describe property ejusdem generis, and that he used the adjective “personal” as descriptive of chattels of personal use and convenience, not intending to include stocks, securities, or other productive property. Dole v. Johnson, 3 Allen, 364.
2. The testator, at the time he made his will, and at the time of his decease, held two mortgages of real estate in Clinton executed by Orison H. Welch; he also held a mortgage executed by Mary A. Welch, the wife of Orison, to the Lancaster Savings Bank, in which Orison joined, releasing his right as tenant by the curtesy, and which had been assigned to the testator by the bank. It is clear that the bequest to the wife, of “ two mortgages on real estate by Orison H. Welch in Clinton,” covers only the two mortgages executed by Welch and th'e debts secured
3. The testator bequeaths to his wife “ one mortgage on Horatio Bailey of Lancaster.” This language, strictly construed, is meaningless; but there is no doubt that he intended to give her the debt secured by a mortgage given by Bailey. He in fact owned and held two mortgages executed by Bailey. As he has not specified which of the two mortgages she is to take, we think that by implication he gives her the right of selection, and that her guardian may elect which of the two shall be transferred to her use by the administrator.
4. The bequest of “ the bank stock I hold in the First National Bank of Clinton ” is a gift of particular property specified and distinguished from all other property of the testator, and is therefore a specific legacy. Towle v. Swasey, 106 Mass. 100. Foote, appellant, 22 Pick. 299. White v. Winchester, 6 Pick. 48. Metcalf v. Framingham Parish, ante, 370.
As to property specifically devised or bequeathed, the general rule is that, in the absence of any expressed intention to the contrary, such property is to be exonerated and relieved from all incumbrances placed upon it by the testator. Richardson v. Hall, 124 Mass. 228. This rule should be applied to this bequest, and the administrator should pay the debt for which this bank stock is pledged, and transfer to the widow’s guardian the stock free from incumbrance.
5. The remaining question under this clause of the will is whether the administrator should transfer to the guardian the property given to the widow. If we assume that the bequest was intended to be for the life of the widow, and that at her decease the property is to be divided equally among the heirs of the testator, yet we think his intention was that she should hold and manage it. He makes no provision for trustees, but gives it to her “ to hold for her own benefit as long as she lives.” There being no suggestion of danger that the property will be wasted or secreted by the life tenant, we are of opinion that she is entitled to the management of it, and that the administrator should transfer it to the guardian. Gibbins v. Shepard, 125 Mass. 541.
6. The next clause of the will is as follows: “ I bequeath to my daughter Marion a trust deed on a saw-mill in the State
7. The remaining clauses of the will which give rise to any question in this case are as follows: “ I devise and bequeath to my son F. W. Goss one half of my interest in the property in the lands and machinery and effects in sash and blind factory in Chicago, State of Illinois,” and “ I devise and bequeath to my son-in-law W. B. Phillips one half of my interest in lands and machinery and effects in the sash and blind factory in Chicago, Illinois.” The testator owned 727 shares in a corporation in
We have thus considered all the questions presented by the administrator. A decree may be drawn in accordance with these views, the form of which may be settled before a single justice.
Decree accordingly.