| Mass. | Jun 25, 1919
This petition calls for the construction of the will of William McKie, late of Boston. The testator was a widower about seventy-five years old at the time- of its execution. His prospective heirs were two grandchildren, William and Edward McKie, minor children of his deceased son, Eldred, two other grandchildren, William H. and Ethel B. Rome, then aged respectively about twenty-five and twenty years, children of his deceased daughter Belle, and four- daughters, one a spinster, one a widow, and two married. These persons all survived him, are beneficiaries under the will, and are parties hereto. The will contains six clauses. The first relates to the payment of debts and the last nominates executors. These have no pertinency to the present litigation and need not be considered further. The controversy is confined to the other four clauses, which are in these words: "Second. To my grandson William H. Rome, Jr. Five hundred dollars upon the expressed condition that he shall not contest this will. If he does contest then he takes nothing. Third. To my granddaughter, Ethel B. Rome, Five Hundred Dollars upon the expressed condition that she does not contest this will. If she does contest then she takes nothing. Fourth. To Robert F. Jordan and Millie W. McKie in trust for my grandchildren, sons of my deceased son Eldred E. McKie, a sum equal to the amount that my said son would have received had he been living at the time of my death, the income or what ever part •thereof that said trustees shall deem necessary, to be paid said children in equal part, and said principal to be paid to the said children as they arrive at the age of Thirty Five. In the event of either of them dying before reaching said age, and not having married, then his part shall go to the survivor. Fifth. All .the rest, residue and remainder of all my estate, real, personal and
Clauses second and third, considered by themselves, are plain. Each gives a definite legacy of $500 upon the explicit prerequisite that the legatee shall not contest the will. Otherwise such legatee is to take nothing under the will. Each of these clauses is complete in itself. Each has the appearance of finality. Commonly a devise or legacy upon condition that the beneficiary shall not contest the will is the full expression of testamentary bounty.
The meaning of clause fourth is not doubtful. Its rational purport is to put the two McKie grandchildren in the place of their father so far as concerns the total amount for their benefit, but to give it in trust with right of survivorship in case of the death of either unmarried before reaching the age of thirty-five years. It is to be observed that this clause does not say that these grandchildren are to receive the share which their father would have received had he survived the testator and the latter had died intestate. Its terms are that there shall be given to trustees “ a sum equal to the amount that my said son would have received had he been living at the time of my death.” That amount is not determined by the share he would have received in the event of intestacy of his father. It is determined by the amount which would have come to him -under the will. That this is its meaning is made clear from the following clause fifth. This is a residuary clause in which no person is named but in which the beneficiaries are indicated by reference to classes of relatives. Manifestly all his children living at the time of the testator’s death are included. If his son Eldred had been living, of course he also would have been included within the scope of' the words used. Since he had died previously, his share is to go to his two children by right of representation. However, it does not go to them as a free and absolute gift, because it is “subject to the conditions heretofore set forth,” that is to say, the conditions as to survivorship and trust which are contained in clause fourth. While these perhaps are not conditions in the narrowest and most technical sense, they are limitations upon full enjoyment and in a general and popular signification may properly be
The Rome grandchildren are excluded from sharing in the residue for two reasons. (1) In the first place the natural inference from the form of words used in clauses second and third is that the legacy given in each of these clauses is the complete expression of the design of the testator for the benefit of these legatees. When a testator makes a gift to one of his next of kin on the express condition that he shall receive nothing if he publishes his disappointment by making contest as to the validity of'the will, that usually is a full and consummated statement of , testamentary purpose. That is the impression conveyed by the words used in clauses second and third. (2) In the second place, this interpretation is the only one which imputes intelligence to the testator in phrasing these clauses. If the Rome grandchildren are included among those who are to share in the residue of the estate, then the $500 given to each by the second and third clauses would be a gift of that sum more than would be received by any other next of kin of equal degree or than would be received by the Rome grandchildren if they should contest the will successfully. It would be a gratuity of $500 more than they possibly could get in any other way, upon the express condition that each one does not contest the will. It would be a gift to induce them not to do something which no rational person would think of doing. Such a provision would be without sense. It would have no foundation in reason. Such vacuity of mind cannot be attributed to the testator unless there is no escape from it.
Clause fifth is not couched in accurate or felicitous language. Its construction is not free from difficulty. But the necessary meaning seems to us to be that which we have stated. By giving to the words “subject to the conditions heretofore set forth” a narrowly constricted and somewhat technical construction, by unduly enlarging the scope of the phrase “the children of my deceased children to take by right of representation” beyond the limitations imposed by their context, and by ignoring the normal
The decision of all questions respecting the construction of wills “depends upon the intention of the testator, as manifested by the words that he has used, and an omission to express his intention cannot be supplied by conjecture. But if a reading of the whole will produces a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words,” or a benefaction to be denied which is not manifested by an apt phrase, “the court must supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.” Metcalf v. Framingham, Parish, 128 Mass. 370" court="Mass." date_filed="1880-02-26" href="https://app.midpage.ai/document/metcalf-v-first-parish-in-framingham-6419878?utm_source=webapp" opinion_id="6419878">128 Mass. 370, 374. Polsey v. Newton, 199 Mass. 450" court="Mass." date_filed="1908-09-04" href="https://app.midpage.ai/document/polsey-v-newton-6430360?utm_source=webapp" opinion_id="6430360">199 Mass. 450. Jones v. Gane, 205 Mass. 37" court="Mass." date_filed="1910-02-23" href="https://app.midpage.ai/document/jones-v-gane-6430955?utm_source=webapp" opinion_id="6430955">205 Mass. 37, 44. The application of that principle leads to the conclusion which has been stated.
Extrinsic evidence to show the intent of the testator and to explain the will was inadmissible.
The result is that the decree is reversed and a decree is to be entered to the effect that the Rome and McKie grandchildren take only under clauses second, third and fourth and are excluded from benefits under clause fifth. Costs as between solicitor and client are to be allowed out of the estate, the amount to be determined by a single justice.
So ordered.