199 Mass. 450 | Mass. | 1908
The bill alleges among other matters that there is a mistake apparent upon the face of the will of Mary E. Wilbur, deceased, in respect of clause “ Tenth,” which is : “I give and bequeath to said John F. Newton Junior one hundred (100) shares of the Boston Wharf Company, but in trust nevertheless, to hold and manage the same and pay the net income thereof to or for the use of my son, said Nathan S. Wilbur, for and during his life: and from and after his decease to pay said income to the wife of my said son, for and during her life; and upon the death of the survivor of them, my said son Nathan S. Wilbur and
1. The language of a will is to be construed in the light of all the knowledge possessed by the testator as to the subject matter. Oral evidence is admissible for the purpose of showing every material circumstance attendant upon one who executes a will, in order to ascertain as nearly as possible with what purpose the words were employed. Best v. Berry, 189 Mass. 510. The testatrix knew that her son Nathan and his wife had no children, and also that she had three grandchildren, and that she was fond of all of them; Children of her son Nathan and his wife would of necessity be her grandchildren. The phraseology she used imports an unmistakable intent to give the remainder, at the expiration of the life estate, to her, the testatrix’s, three grandchildren. The sentence written in the will employs an abbreviated paraphrase to express this intent. The paraphrase, as applied to the circumstances of the testatrix, taken narrowly
2. There is no power in equity to reform a will duly admitted to probate. The power to dispose of property by will must be exercised by an instrument in writing, except that a soldier in actual military service or a mariner at sea may make oral transmission of his personal property. R. L. c. 135, §§ 1, 6. The written instrument is the final and unalterablé expression of the purpose of the testator. The power of the court is limited to interpretation and construction. It cannot make a new will. To allow the reformation of a will in favor of disappointed devisees or contesting heirs and upon such evidence as they might produce after the death of the testator, would open the door for fraud and perjury to substitute designs of interested beneficiaries for the deliberately expressed intent of a testator. It is the policy of our law to restrict rather than extend the opportunities for the establishment by oral testimony of interests in the estates of deceased persons. R. L. c. 74, § 6. It may sometimes happen that, upon undisputed facts an unfortunate mis
Decree of Probate Court affirmed.
Justices Loring and Braley agree with the majority of the court that, if a will duly executed is not in conformity with the instructions given to the draftsman who prepared it, the fact that he made a mistake does not enable the court on a bill in equity to recast the will for the testator in accordance .with those directions. Having been admitted to probate, the will of the testatrix can be construed as it came from her hands, but it cannot be altered, or “ remoulded ” by amendments. Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, 98. Box v. Barrett, L. R. 3 Eq. 244. Charter v. Charter, L. R. 7 H. L. 364, 377. Guardhouse v. Blackburn, L. R. 1 P. & D. 109. In the matter of the Clergy Society, 2 K. & J. 615. Harter v. Harter, L. R. 3 P. & D. 11, 22.
But they are unable to concur in what is said in the opinion as to the true construction of the will. In their view, in construing a will it is not permissible to read into the instrument words descriptive of those who are to take as legatees predicated on 'words found there, and then, on extraneous facts, read out the original words, and give the property to persons who are not within its provisions as admitted to probate. Boston Safe Deposit & Trust Co. v. Buffum, 186 Mass. 242, 243. The petitioners are not “ children ” of her son who is expressly named, but of her daughter to whom no reference is made. They cannot be brought within, the bequest unless article ten is bodily reformed by the elimination, substitution and addition of words by which in legal effect this clause not only is radically recast, but is made to express an entirely different disposition of her estate. If the legatees had been described in terms which were applicable to more than one person, extrinsic evidence would have been admissible to indicate who were meant by a designa
They further deem it important to direct attention to the fact that the true construction of this will is not now decided. Until the death of the survivor of the tenants for life, that question does not arise. Bullard v. Chandler, 149 Mass. 532, 538, and cases cited. Peabody v. Tyszkiewicz, 191 Mass. 317, 322. In their opinion, the attempt to forestall the decision of the court as it may be constituted when that question is presented, is not only inadvisable, but judicially impossible.
If it were the judgment of the court that the will could be rectified according to the prayer of the bill, then, if doubtful, the question of construction might be considered. But as the court unanimously holds that the will cannot be reformed, whatever its proper construction may be, the consideration of this question is wholly unnecessary, and, the discussion of it' being indecisive, forms no part of the adjudication in the case. Cohens v. Virginia, 6 Wheat. 264, 298. Carroll v. Carroll, 16 How. 275, 287.