316 Mass. 530 | Mass. | 1944
The executors of the will of Arthur Michael, late of Newton, a professor emeritus at Harvard, bring this petition for instructions with respect to seventeen pieces of early American silver, valued at more than $5,000, which at the time of his death on February 8, 1942, were at the Boston Museum of Fine Arts as a loan.
The material parts of the will follow. “Fourth, To the Smithsonian Institution of Washington in the District of Columbia, my collection of old American silver, whether at my said residence in Newton or on loan in said Smithsonian Institution at the time of my death, not including however any family silver marked ‘C. M.’ or 'A. M.’ I direct that
The Smithsonian Institution, and the children mentioned in the sixth paragraph of the will, are in dispute over the seventeen pieces in question, which at the death of the testator were neither on loan in the Smithsonian Institution nor at his residence, but were at the Boston Museum of Fine Arts as a loan.
The remainder of the collection of early American silver owned by the testator consisted of one hundred thirteen pieces valued at more than $40,000, and at his death was at his residence. No part of the collection was “on loan in said Smithsonian Institution at the time of” his death.
The Probate Court entered a decree “that said petitioners distribute said seventeen pieces of old American silver to said Smithsonian Institution.” The children mentioned in the sixth paragraph of the will appealed.
The essence of the gift to the Smithsonian Institution was “my collection of old American silver,” except certain family silver. It was “this collection” that was to be exhibited in the National.Art Gallery. The words “whether at my said residence in Newton or on loan in said Smithsonian Institution” apparently were intended, not to restrict or cut down the bequest of “my collection,” but rather to make sure that the possible temporary dispersal at the death of the testator of parts of his collection of old silver should not affect its unitary character. See Taylor v. Albree, 309 Mass. 248, 256. No one contends that the silver at the Boston Museum was not a part of “my collection.” If some of the pieces, at the time the testator died, had been at a silversmith’s shop for repairs, we cannot doubt that they would have passed to the Smithsonian Institution as a part of “my
If we consider other facts shown by the record, the result is the same. When the will was drawn in December, 1935, the testator gave the lawyer who was drawing the will a copy of an earlier will executed by him in the preceding January, by which he bequeathed to the Smithsonian Institution “my collection of old American silver at said 219 Parker Street in Newton [his residence], or on loan to the Boston Museum of Fine Arts, not including, however, any family silver marked 'C. M,’ or 'A. M.’” The testator told the lawyer that he had decided soon to transfer to the Smithsonian Institution as a loan the silver already lent to the Boston Museum. More than one draft containing the same provision as that in the will finally executed was submitted to the testator, and he made no comment on the provision as drawn. Evidently the will was drawn in the belief that very soon the silver in question would be in the Smithsonian Institution. Apparently death occurred before the testator carried out his intention to transfer the silver, although he lived until February 8, 1942. We think that these facts, if considered, support our conclusion that the entire collection, wherever located, was intended to pass as a unit to the Smithsonian Institution.
Decree affirmed.
