215 Mass. 276 | Mass. | 1913
By the third article of the will of Iver Johnson, the residue of his estate was devised and bequeathed to trustees to hold and keep the same safely invested and to pay over the income as it shall be received by them to his wife “for the support and maintenance of herself, and the care, maintenance, and education of our children, during her life, or until she shall marry again.” By agreement of parties the case is reserved by a single justice, upon an agreed statement of facts, for the consideration of the full court “ solely for the interpretation of those provisions of the will which relate to the disposition of such income.” Questions as to the actual amount of the income as distinguished from capital are not here reserved.
The clause above quoted was written by a “skilled attorney at law of wide experience in preparing and drafting wills,” is brief, simple and direct in form, and upon its face would seem to be easily understood; and yet in view of the decided cases the parties concerned do not agree as to its meaning; and its interpretation is attended with some difficulty.
The widow contends (1) that she receives the income absolutely as her own property, free from any trust in favor of the children or liability to them; or (2) in the alternative, that the trust, if any, in favor of the children extends only to such an amount as may be necessary for their proper care, maintenance and education, and that any excess above that amount belongs absolutely to her. Two of the children, namely, J. Lovell and Mary, seem to agree with the widow in her views. Walter, one of the sons, contends that the whole income was impressed with a trust in favor of the widow and children, to last during the term of the trust; that the widow has full and absolute discretion as to how much should be expended for her own support and for the care, maintenance and education of each of her children; that any part of the income temporarily in her hands and not needed for the time being for such expenditures still remains charged with the trust, and that no part of the income goes to the widow as her own property or can be appropriated by her as such, and that, at the termination of the trust, “any unexpended income should then be distributed as a part of the trust fund, or, at least, according to the same method.” Fred, the eldest son, contends that the widow receives the income upon
The questions raised by these various contentions may be briefly stated thus: 1. Does the widow receive the income absolutely as her own property, or in trust? 2. If in trust, what is the nature and extent of that trust?
1. As to the first question. In the construction of any clausé of a will, the cardinal rule, as often has been said, is to ascertain the intention of the testator. And this is to be done by reference to the express language of the clause under consideration, to the other parts of the will, to the dominant purpose of the testator as shown by the whole will, to the circumstances under which the will was executed, including among other things the situation, pecuniary and in other respects, of those having as members of his family or otherwise a natural claim upon him for recognition or assistance, as well as the relations sustained by him to all the legatees; and to the decided cases so far as they tend to throw light.
The original will was executed on March 24, 1877. Although neither the age nor the occupation of the testator at that time is expressly stated in the agreed statement of facts, still it fairly may be inferred from the facts agreed, including the will itself, and the oral statements made at the argument, that at that time he was not beyond middle age and was in the “ full vigor of health,” that he was possessed of a comfortable household establishment, and that as an employer he was engaged in a manufacturing business of good promise, susbtantially the same as that which, as carried on and developed subsequently by him during his lifetime and by the executor since his death, has been very profitable. His family consisted of himself, his wife, then twenty-eight years of age, and two boys aged respectively about five and a half years,
In full health, bodily and mental, this man thus situated concludes to make his will. He does not intend to make any bequests outside his immediate family. To his family alone, so far as any survive, is all to go. But in his mind there is a distinction between income and principal, and in a general way he desires that, if practicable, only the income of the bulk of his property shall be spent during the life or the widowhood of his wife, leaving the principal to stand well invested and to be distributed among his issue thereafterwards. He is somewhat solicitous about what shall be done with his manufacturing interests existing at his death. But he wants everything he leaves to be safely invested, and in view of the risks of continuing the business he thinks it best on the whole that his interests in that connection be closed up as soon as possible, without undue sacrifice. His idea is that for a while at least the family shall be kept together in the home in existence at the time of his death. And he knows not how soon the change, to meet the consequences of which he has resolved to make preparations, may come. In entering upon this work he does not rely upon himself, but he calls to his aid a skilled attorney of wide experience in drafting wills. They confer together, and the will is drawn. After making provision for the payment of all obligations the mind of the testator seems first to turn to the sanctuary of his home; and he gives all his household furniture and every movable article (naming them by classes in considerable detail) which may be in or about the house or premises in which he may be residing at the time of his decease, unto his “dear wife, ... for her sole use and benefit.” Having thus provided for the continuance of the home, in which he has lived with his family, so far as respects the familiar material things in or about it, he passes to the consideration of the rest and residue of his property. He intends to put it in trust. He
After the death of his wife, “if she shall not have married again,” the fund is to be distributed equally among his children then living, and the issue of any deceased child taking by right of representation. Should the wife remarry, then two thirds of the fund is to be distributed among the children and the issue of a deceased child in like manner, and the income of the third kept in trust shall be paid over to the wife during her life, and at her death this one third of the fund shall be distributed in like manner among the children. If at the time of the marriage of the wife no child of the testator be living, then the whole income of the fund shall be paid to her during her life, and at her death the principal shall be distributed among the testator’s heirs at law. A similar disposition is made of the principal fund if at the decease of the wife, whether she has married or not, there be then no child living.
For the purpose of making the settlement of the estate as easy and expeditious as possible, the executors, or whoever may execute the will, are given large powers as to the sale of real estate. Finally, his wife and Hayward, then in his employment, are named to be executors without sureties on their bonds.
In general outline the plan disclosed and crystallized in the will is simple. It does not contemplate the use of one dollar of the principal for the support of his wife or children unless the income should prove inadequate, and even then only so far as his wife may think necessary. His purpose is that with that exception neither she nor any of the children shall touch the principal during the life of the wife unless she marry again. He is providing for the
What did this man thus circumstanced, in the will thus framed under the advice of a skilful and experienced lawyer, mean when he provided that the "income should be paid to this woman, his wife, “for the support and maintenance of herself, and the care, maintenance, and education of our children, during her life, or until she shall marry again”? In the will itself there are plain indications that he by the aid of the attorney, knew how to use words apt to create an absolute gift free of trust. Such is the gift to the wife of the household furniture and other articles about the home, for her sole use and benefit. There can be no doubt as to the nature of this gift. It is absolute and free from trust, and the intent that it shall be so is expressed in words that admit of no other interpretation. And, what is more significant, the same characteristic is shown in other parts of the will with reference to this very matter of income. By the fifth article it is provided that in case of the marriage of the widow, any child of the testator being then alive, the income from one third of the trust fund shall
In neither case is there any need of a provision for the children, in the first, because two thirds of the trust fund is distributed among them, and in the second, because by the hypothesis there are no children. In a word, there are in this will three separate clauses, one concerning the gift of household furniture and similar articles, and two concerning the income of this very fund, in each of which clauses it appears that where the testator intended that the children should have no interest in the gift he knew how to express that intention in apt, clear and unambiguous language.
The clause under consideration is in different language. There can be no doubt that until the marriage or death of the widow, whichever should first happen, in this clause and in this clause alone is there any provision out of the income for the children either during their minority or majority. No matter how large it may be, not a dollar of it is theirs by right except under this clause. And the testator knew this. Knowing this, instead of leaving it to his wife in words similar to those used by him in the other places of the will he provides that it shall be paid to her for her support and the support of her children. In his own mind there is an intimate connection between this income and the support of the children, and it is the only place in the will where he seems to have considered this relation. And the suggestion in his own mind seems to have been that until the death or marriage of the widow the children must look to this income, if anywhere, for care, maintenance or education. It is impossible to read this will without coming to the conclusion that he intended the children should have their support out of the income. That intention is clearly expressed. It is the intention naturally suggested by the circumstances under which the will was executed. And this intention was expressed not as an expression of confidence that its execution safely could, be left to the wife, nor in words of recommendation, hope, entreaty or desire, but as a command, or in other words as his testamentary will.
. Such would seem to be the irresistible conclusion upon a simple
We are aware of the fact that the cases in other jurisdictions are in conflict with each other, and some do not give the same weight to words like those under consideration as this court does. See for example McCroan v. Pope, 17 Ala. 612; Dee v. Dee, 212 Ill. 338; Seamonds v. Hodge, 36 W. Va. 304; Small v. Field, 102 Mo. 104; Whitridge v. Williams, 71 Md. 105; Crandall v. Hoysradt, 1 Sandf. Ch. N. Y. 40. In many of the cases however the conflict is more apparent than real, since the circumstances of the cases are different; and the weight of authority seems to be with the general view taken by this court. We also give due consideration to the suggestion that the proposition, stated by Hoar, J., and reported in substance in two subsequent cases above mentioned, is not to be accepted as a rule necessarily overruling every other rule of interpretation. It is simply one rule of construction and as such is to have its legitimate effect under all the circumstances of the particular case.
It is unnecessary to pursue this branch of the case further. We do not think that the provision as to the disposition of the principal required to make up any deficiency of the income is of much bearing. For reasons above set forth we can have no doubt that this income is held by the wife not as her absolute property, but impressed with a trust for the support of herself and her children.
There is nothing in Rich v. Rogers, 14 Gray, 174, or Johnson v. Bridgewater Iron Manuf. Co. 14 Gray, 274, or Pitts v. Milton, 192 Mass. 88, relied upon by the widow, which is inconsistent with this result.
We have considered the case as if there had. been no codicil.
2. As to the nature and extent of the trust. The trust in substance was for the support of the widow and children until her marriage or death, whichever event should first occur, and within that time was to continue not only during the minority of the children but afterwards during their respective lives. At the time of the execution of the will there were only two children, each of tender age, and when the codicil was executed there were four children, of whom Fred, the eldest, was in his twenty-fourth year and Mary, the youngest, in her tenth year. Manifestly the amount required for the support of the five beneficiaries would vary from time to time. There is no qualifying adjective or phrase like"“necessary,” “comfortable” or “at the discretion” of the wife. Of course the support must be reasonable, and what is reasonable depends among other things upon the actual physical needs of the beneficiary, his station in life social and otherwise, the demands to be met and the, amount of the income. What might be regarded as reasonable under one set of circumstances might not be so regarded under another, even if the income remained the same; and what might be regarded as sufficient when the income was small might not be deemed such when the income was larger, even although there was no other change in the situation. The support is not what the widow considers reasonable, but what the law declares to be such. And although it is the duty of the widow, in whose hands lies the money, to decide in the first instance what is reasonable so that she may perform her trust, the beneficiary, if thinking himself aggrieved, may apply to the court for a revision of that decision; and whether the decision be made by the widow or by the court, the question is always the same, namely, what is a reasonable support under the circumstances? To this each beneficiary is entitled, and to this is the income in
But it appears from the agreed statement of facts that this income referred to in the article under consideration has exceeded the amount which the petitioner has expended, or in her judgment, exercised in good faith, has heretofore needed to expend for the support and maintenance of herself and the care, maintenance and education of her children. This is not a statement that it exceeds the amount which the law would deem reasonable, but from the trend of the remarks made at the oral argument we infer that the amount of the surplus is greater than the widow thinks would in any view be regarded as reasonable. Of course it is her duty to execute the trust, and to make reasonable preparations to meet contingencies, and the surplus of one year may be needed to make up the deficiency in another. But what is to be done with the surplus of income not required for the due execution of the trust?
It is to be noted that the will separates the income from the principal.. After the income is paid to the widow it is no longer a part of the main trust fund, but it is subject to a new trust; and there is no express provision in the will that this surplus of income after it is paid to the wife, shall ever go back to the trust fund from which it was separated. On the contrary it would seem from an inspection of the will that the idea of the testator was that there was no occasion to pursue the income after it reached the hands of the widow further than to provide for her support and that of his children. Possibly he did not anticipate that there would be a surplus. But however that may be, although he gives very minute and complete directions for the disposition of the principal of the trust fund in the various possible contingencies of the future, he nowhere makes any further disposition of the income received by the wife under the clause in question. That income we have seen is subject to a trust. Upon the whole we are of opinion that the surplus remaining in the hands of the widow after the execution of the trust does not pass to the heirs as undivided estate, but under the third article to the widow as her own property. In other words,, she holds the income not upon a trust
The result is that the income paid to the widow is held by her subject, during her widowhood or life, to a trust for a reasonable support of herself and her children, and that so much of the income as is not needed for the execution of that trust is held by her as her own property free from trust. There should be a decree to that effect.
So ordered.