152 Mass. 89 | Mass. | 1890
The testator, after giving in the first article of his will his household furniture, pictures, etc., with one thousand dollars in money, to his wife absolutely, by the second article of his will devises to trustees for the benefit of his wife, for her life, his residence on McLean Street, in Boston, directing them to manage it for her benefit, and to pay over to her during her natural life the net income, or, if she so elected, to permit her to occupy the estate, she paying the taxes, etc. thereon, and keeping the same in repair. He further directs the trustees, “ on the decease of my said wife, to convey the said parcel of real estate in fee to the Home for Aged Men, a corporation established by a law of this Commonwealth.” He suggests to that corporation the expediency of using said premises for the “ Home,” stating the reasons why he deems it suitable therefor, but adding that by this suggestion he does not intend to impose any restriction “ upon the absolute title to be conveyed to said Home for Aged Men in said real estate upon the decease of my said wife.” By the same article, he bequeaths twenty-five thousand dollars in personal property, the income to be devoted to the benefit of his wife during her life, directing the trustees to form this fund by selecting any part of his whole personal property, not specifically bequeathed, as they may deem expedient, at an appraisement thereof, and, so far as they shall not select specific items of his personal property, directing the necessary amount to be paid by the executors to them in cash. He states that these provisions for his wife in this and the preceding article are intended to be in lieu of dower, or other claim on his estate, and adds, “ I prefer said provisions to all other devises and bequests of this will, and direct that said bequests in article first to my said wife be delivered and paid to her, and said trust fund of twenty-five thousand dollars be formed, before
By the third article of his will the testator bequeaths to his trustees sixteen thousand dollars, the income to be for the benefit of his two sons, according to certain trusts particularly stated. He adds, that lie prefers this bequest next after the devise and bequests in the two preceding articles for the benefit of his wife, and directs the fund to be formed next after the twenty-five thousand dollar fund, and in the same manner, in whole or in part, by selection by the trustees from any of his property then remaining, and before payment of any legacies thereafter given by him. The subsequent clauses of the will give other legacies, some pecuniary and some specific, and provide for the management of the trust, for the payment of the taxes, and for the disposition of the residuum of the estate. They do not require to be considered in connection with the instructions asked, with the exception of the thirteenth clause, to which we will hereafter advert.
Mrs. Seward died before her husband. The debts of the testator have been satisfied, and the administrator has in his hands only the sum of $6,279.50, and he askes instructions as to whether it is his duty to sell, or apply to the proper court for leave to sell, the McLean Street estate, in order to form the twenty-five thousand dollar fund, and to pay therefrom, so far as he may, the legacies which were to be paid from that fund.
It is the contention of the Washingtonian Home, that the McLean Street estate should now be sold, and the proceeds thereof applied to the formation of the twenty-five thousand dollar fund, from which it is to be paid its legacy of ten thousand dollars in full before the children and other legatees, and also that, if the McLean Street estate is not to be thus sold, the Washingtonian Home is to be paid the sum now in the administrator’s hands in part satisfaction of its legacy. So far as the children and granddaughter of the testator are concerned,
The contention of the Washingtonian Home, which we have to consider, is whether the intention of the testator has been shown that the twenty-five thousand dollar fund created by the second article is to have such a preference over the devise of the McLean Street estate to the Home for Aged Men that this should now be sold in order to create it. The devise of that is of a piece of property clearly defined, and absolutely in terms is
It is urged on behalf of the Washingtonian Home, that the language above quoted from the second article shows that the provisions of that article as to the formation of the twenty-five thousand dollar fund were to take precedence of any devise therein made of a remainder in the McLean Street estate to the Home for Aged Men, and that the formation of the fund of twenty-five thousand dollars should have priority over any other provision of the will after the death of his wife. This argument concedes that, but for the two clauses in the second article, by which it is shown that the Washingtonian Home was preferred to his children, the third article would point to the sixteen thousand dollar fund as preferred above everything after the wife’s death. All that the wife was to receive in the way of benefit from the McLean Street estate, according to the provision made for her by her husband, was for life, and she received this by her right to enjoy the rent thereof or the occupancy at her pleasure. When the testator says that the provisions made for his wife’s support are to be preferred “ to all other devises and bequests of this will,” it cannot be intended to interfere with a devise of property in remainder, of which she would previously have enjoyed the income during life. The provisions for her support will have had the preference the testator accords to them over all other devises and' bequests, when she has enjoyed, as by the terms of the will she is entitled to enjoy, the income
If we examine the whole will, — and the rule that the construction of a will is to be made on the whole instrument, and not on disjointed parts of it, and that all its various provisions are to be construed together, is very familiar, — it will be seen that the construction which the Washingtonian Home seeks to give to it is incorrect, that no preference is given to the twenty-five thousand dollar fund over the specific devise, and that the intention of the testator that the Home for Aged Men shall receive the fee of the real estate on the death of Mrs. Seward appears clearly. The fund bequeathed is in “ personal property,” and in its formation the trustees are authorized to select any part thereof on appraisement from the testator’s whole personal property. There are but two references to this estate, except that quoted from the second article. These are in the thirteenth article. The testator, while directing the formation of the two funds from his personal property, seems to have apprehended that it might be insufficient for the purpose. In this article he authorizes his trustees to sell and convey any real estate, or any part of it, of which said trust funds may at any time consist, “ except said McLean Street estate.” He further empowers his executor in the settlement of his estate, or in the formation of any trust funds, or in the payment of legacies with the advice of the trustees, to sell his real estate, “ saving always the McLean Street estate.” These exceptions show that the testator intends to provide against any sale of this parcel of real estate, either for investment of the proceeds or to pay the legacies, and this for the reason that he has set it aside for the Home for Aged Men.
Upon the whole case, we are of opinion that the Washingtonian Home has failed to show that there was any intention on the part of the testator to prefer the trust fund in which it is interested over the specific devise made for the Home for Aged Men, or to give any priority thereto, and that the intention not