126 Mass. 433 | Mass. | 1879
The court is of opinion that the “ home and maintenance” given to Comfort Parker, by the will of her father, was intended by him to be a home and maintenance on the premises where he lived at the time of his death; this intention is to be gathered from this and other provisions of the will and the circumstances which surrounded the testator at the time it was made.
The testator left a widow, three sons, three married daughters, and Comfort, then about seventeen years of age. He gave to each of his married daughters legacies in money, and to Comfort a small sum of money, and “ a home and maintenance during the time she remains unmarried.” To his widow he gave the use and income of all his real and personal estate during life. This estate consisted of about $2000 in personal property, and three farms, on one of which was the homestead where the testator had always lived with his family. To one of his sons he gave nothing, he having received his full share; and to his other sons, William S. Parker, the executor, and Bernice Parker, one of the defendants, he gave the remainder of all his property real and personal in equal shares, upon the decease of his wife, “they and each of them giving their personal services during my life and the life of their mother in cultivating the premises where I live to the best of their ability.” He makes no other provision for these sons during the lifetime of their mother, and it is not to be supposed that he intended that they should give
Although this clause is inartificially drawn, it is clear that it was the intention of the testator that the sons, who were to have the property on the decease of their mother, should give their services in cultivating the homestead, reside there, and receive their support from the estate with their mother, and that it should continue to be the home of the family. This is the home in the mind of the testator referred to in the legacy to Comfort. Intending to provide for his wife and sons a home and maintenance on the homestead, it is not to be presumed, in the absence of express words, that he intended that Comfort, then a girl of seventeen, while unmarried, should have a home and maintenance elsewhere. Such was the practical construction put upon the will by the parties; for Comfort continued to reside and receive her maintenance there until a year after her mother’s death, which occurred in 1873, when she left, on the ground that she was entitled to be maintained where she might choose to reside. That she was not justified in leaving by reason of ill treatment on the part of her brothers has been determined by the finding of the presiding judge.
The homestead is now owned and occupied by her brother William S. Parker, the executor of the will, and he is ready and willing to provide for her a home and maintenance there; and we are of opinion that he is not bound to provide her a home and maintenance at another place, at her election. Upon the question what would be her rights, if he should refuse to do so, or should dispose of the estate, we express no opinion.
The numerous cases cited at the argument afford but little assistance in deciding this question. Where a testator provides in his will that his wife, child or other person shall be supported and maintained by his executor, or where the condition of a deed or mortgage recites that the grantee or mortgagor shall support the grantor or mortgagee, and the instrument does not point out that the support shall be provided in a particular place, then the party so entitled may have the support where under reasonable limitations he may choose to reside. But if the instrument points out the place where the support shall be furnished, it is not the right of the party entitled to receive it to
Beeree accordingly.
