Pope v. Pope

209 Mass. 432 | Mass. | 1911

Hammond, J.

1. There can be no doubt that cestuis que trust to whom gifts of annual income are made are entitled to such income from the death of the testator. R. L. c. 141, § 24. Indeed nobody at the argument before us contended, nor does it appear by the pleadings or otherwise that any of the parties interested ever contended, to the contrary.

2. “ A wife cannot be deprived of her dower except by her own consent. Therefore, when she accepts a provision in her husband’s will as a substitute for this existing legal right, the law regards her as standing in the light of a purchaser for a valuable consideration, and entitled to receive the whole of the sum given by the will ... in preference to other legatees, who, being only objects of the bounty of the testator, and not having any legal claim on his estate, are regarded as volunteers, and are not allowed to take until the widow has received the full amount of the bequest to her.” Bigelow, C. J., in Pollard v. Pollard, 1 Allen, 490, 491. In that case the will expressly stated that the bequest was in lieu of dower. But the same principle is applicable where the widow loses her dower by not waiving the provisions of the will, even though the will does not specifically provide that the gift is in lieu of dower. Under our statutes, if the widow does not waive the provisions of the will she loses her right of dower unless it plainly appears by the will that the testator intended such provisions in addition to dower. If she foregoes the right to dower, therefore, she takes the legacy in the character of a purchaser for valuable consideration and is entitled to a preference. Towle v. Swasey, 106 Mass. 100. Richardson v. Hall, 124 Mass. 228, 234. Borden v. Jenks, 140 Mass. 562. It is suggested by the guardian ad litem of certain persons interested that the other provisions in the body of the will may well be taken as equivalent to a reasonable provision in lieu of dower. But that position is untenable. There is nothing in the will to show that any one bequest was intended to be in lieu of dower rather than another. Moreover, as said by Devens, J., in Borden v. Jenks, ubi supra (p. 564), “ Whether the provision be more or less, so far as the testator, the widow, and all pure beneficiaries under the will are concerned, it is the right of the testator to affix what consideration he pleases for the relinquishment of dower, and for the widow to accept or reject it.” The second question must be answered in the affirmative.

3. The third question must be answered in the negative. The condition upon which the $5,000 was to be paid to Ralph Linder Pope upon his arriving at twenty-one years of age was that the testator should not then be living. When Ralph arrived at that age the testator was living. The legacy never became payable nor can it ever be.

4. “ If the income of the trust estate, after having paid all administrative expenses, is insufficient to make all the payments which the testator provided in his codicil should be made from such income,” then the legacy to the widow, for reasons herein-before stated, is preferred and is entitled to be paid in full, and the other legacies are to be abated pro rata. No direction as to the legacy for the education and support of Ralph Linder Pope while a minor arises because, as before stated, he was twenty-one years of age before the testator died.

5. Although the record does not show that the income of the trust fund is insufficient to meet the demands upon it, yet it was stated at the argument and all parties agreed that there was such insufficiency. The fifth question is not therefore before the trustees and may never be before them. For this reason we have no occasion to consider it.

6. The sixth question calls for an interpretation of the following paragraph (f) in the substitute for Article Eighth of the will contained in Article Second of the codicil. “ To each of my surviving children who shall be of age at the time of my decease, and to any child of mine who shall be a minor at the time of my decease when he shall attain his majority, an annually increasing income, the amount of which shall be dependent upon the age of such child, and shall be determined as follows, to wit: three thousand dollars ($3,000) a year at the age of twenty-one years, with an increase of one thousand dollars ($1,000) a year thereafter for ten (10) years: For instance, a child who shall be twenty-one (21) years old at the time of my decease will receive an income at the rate of three thousand dollars ($3,000) a year, at the age of twenty-two (22) four thousand dollars ($4,000) a year, and so on, till at the age of thirty (30) years a child would receive the maximum income, viz., twelve thousand dollars (12,000) a year.”

What does this paragraph mean? It is argued on the one hand that the clause expressly says that the legatee at twenty-one years of age shall have $3,000 a year with an increase of $1,000 a year thereafter for ten years, and that the only possible meaning of this is that to the $3,000 is to be added $1,000 ten times, and hence the maximum is $13,000, and that the ten years does not expire until the thirty-first birthday is reached, and that this plain meaning of the language is to stand notwithstanding the subsequent language in which it is contended that the testator made an arithmetical mistake. It is argued on the other hand that the illustration shows the maximum limit which the testator intended to fix to the legacy, namely, $12,000, and that the time for stopping the increase would be upon the thirtieth birthday and that the mistake, if any, is in the first clause and not in the second.

It is plain that there is a blunder somewhere. The clauses are irreconcilable if each is to be literally interpreted as it reads. Which shall yield ? It is to be noted that this is not a case where the inconsistent clauses are independent statements having no relation to each other. On the contrary it is a case where the second clause is explanatory of the first, or in other words the second clause is the testator’s own statement of what he means by the first. In that explanation of his meaning he describes $12,000 as the maximum limit of the bequest and thirty years as the age at which the increase shall stop. In the first clause he expressly states the minimum, in the second he expressly states the maximum; in the first the age at which the legacy shall begin, in the second that at which the increase shall stop. The second clause states in the testator’s own language the result he supposed he had reached by the first, and evidently the result he intended to reach, while the first clause describes the manner of reaching it. It seems to us more probable that the inconsistency is due rather to an inaccuracy in stating the details of the method of reaching the result than in the express statement of the result itself. The rule of interpretation is somewhat analogous to that which is applied in the matter of description of land, where distance and direction must yield to monuments. The result is that the first clause so far as inconsistent with thS second must yield. The maximum is $12,000 and thirty is the .age beyond which there is no increase.

7. There being no excess of income there is no occasion to consider either the seventh or eighth questions.

8. It appearing by reference to the‘facts stated in the bill of the executors for instructions, which by the terms of the report may so far as material be regarded as a part of this ease, that the stock referred to in the ninth question is not in the hands of the trustees nor obtainable in the market, this question is not answered.

There is to be a decree in accordance with the terms of this opinion, and it- is

So ordered.