Loring v. Blake
106 Mass. 592
| Mass. | 1871
Ames, J.

The direction contained in the fifth clause of Mrs Blake’s will, in relation to the release of all claims against any oi the children or grandchildren for advances, manifestly refers to a memorandum which she herself was to prepare and leave with the will for the information and guidance of the executors. Hei general purpose, as explained in the same clause, was that all the estate should be equally divided “ in the manner provided” in the *595wiE, among the children and grandchildren, “ excepting such charges as may be made by me (the testatrix) and filed with this will as aforesaid.’* It must be inferred that she had made such advances, and probably expected to continue to do so, and that the memorandum spoken of in this clause might become necessary for the purpose of preventing any inequality in the distribution of the estate. The memorandum, by the terms of the will, is made subordinate and auxiliary to her declared intent of an equal division, and this was its only office. This purpose did not require a general account, in which each child or grandchild should be charged with each advance which he or she should have received. There was no occasion for a list of items. E she left no memorandum of the kind, filed with the will, the inference might properly be, that there had been no inequality arising from advances made in her lifetime, which she deemed it material to correct, or at any rate that there were no charges which she saw fit to make.

The receipt signed by Mrs. Clarke is in no sense the kind of memorandum contemplated by the will. It is not a charge made by the testatrix, and there is no evidence that she intended to file it with the will, or that it was in fact so filed. There is no reference in it to the will, and no apparent connection with it. The case therefore wholly fails to show any intent on the part of the testatrix to charge her daughter with the amount, and what she did not so charge must be considered as released in express terms by the will. Decree accordingly.