198 Mass. 153 | Mass. | 1908
The question in this case is as to the effect of the residuary clause in the will of Daniel McLaughlin. He left twenty-two different parcels of real estate, fifteen located in Boston, six in Revere, and one in Somerville, varying in value from $300 to $18,000, and personal property amounting to nearly $49,000. Bills have been presented to his executors amounting to not more than $6,100, and the executors also have been notified that several actions are to be brought for alleged claims against the estate. The will gives pecuniary legacies to the amount of $20,000, and then provides as follows: “ All the rest, residue and remainder of my estate of every nature and description, real, personal and mixed, wherever the same may be located, I direct my executors hereinafter named to divide and distribute among my heirs and next of kin, according to the laws of distribution and descent now in force ” in this Common
The petitioner contends that the direction to the executors to divide and distribute the whole residue both real and personal should be disregarded; that it is mere surplusage, or at most is to be applied only to the personal property, which it is their duty in any.event to distribute among the persons entitled thereto. The respondents contend that this is either a bequest of the residue to the executors in trust to sell and divide it among the testator’s heirs and next of kin, or else that it is left to the executors to convert the whole property into money and divide it among the beneficiaries; and so that the court ought not to make partition of the real estate taken alone.
The language of the will is meagre; but we are, if possible, to ascertain the real meaning of the testator from the words which he has used. We are not to reject any of those words, unless we see clearly that this is necessary to carry out his wishes. Giving effect to all the language of the testator, it seems manifest to us that he has wished to impose upon his executors the duty of dividing and distributing the residue of his estate among his heirs and next of kin. He has, by using the word “ direct,” imposed upon them the duty of doing this. The fact that his real estate consists of so many different parcels of so widely varying values, indicates the probable reason of this desire of the testator. The executors are given the power and the duty of making the distribution; they are charged with an active trust. The case comes within the principles of Going v. Emery, 16 Pick. 107. Here, as in that case, there is a clear intent expressed to dispose of all the testator’s property; the residue spoken of includes both real and personal property; and both alike are to go' to the beneficiaries merely through the hands and by the action of the executors. It is not necessary to decide whether there is by implication a devise to the executors. Gerard v. Buckley, 137 Mass. 475. Fay v. Fay, 1 Cush. 93. Whether this is or is not so, it seems clear that they are given by necessary implication a power and a duty to sell and dispose of the property for the purpose of making the directed distribution. This power of course may be given by
Becree of Probate Court affirmed.