*1 RICE v. SOCIETY. account it that the has waived the objection
But is said appellant of the condition in the out of the road. laying of the imposition out fatal, laying We because the objection have seen au- was not the road the manner was done statute, which directly in fact in contravention thority, but condition 61, sec. 12—that provides (viz., excepting —cli. or out, or shall be affixed to the said gates bars) laying maintenance imposed made. individual for whose benefit the out was laying upon his Now, in manner can it be said has waived what that the appellant ? statute right he objection to make this Within the time limited by was from the that he selectmen, appealed doings alleging the decision of the selectmen out the aggrieved and in laying highway, the assessment The statute does not damages. require he out of his should, taking when set appeal, grounds appeal, nor order him the court any does was made appear upon until known, for a the or bill of It specification particulars. could not be commissioners retain in, came would report whether they or not, feature objectionable there nothing objection which for the or in way jury raised affected the any questions jury, any how trial. do not see would done which appellant anything he insist justify petitioner believing did mean to or his situation objection, altering reason of such belief. seems that the most that could be said be, that, necessary, would in any other case where the party to amend his proposed specification terms such him indem- pleading, might imposed as would nify the other No such occasion is party. apparent opin- me. My ion, is, that the out of therefore, laying must be highway adjudged to be void. Smith, J. The question whether these, conditions like affixed to the out of a laying highway the accommodation individual, of an statute, authorized adversely settled Brown v. Brown, 50 N. H. must report therefore set aside. set aside.
Report Society. Rice Boston Port Aid Seaman’s Dec. 7, 1875. and, Interest on codicils—Cumulative legacies. —Construction The rule in this that a state with- pecuniary legacy, payable generally, designation out time of payment, at end of one payable testator,without interest; from the death of the year if not then it bears interest after paid, expiration year.
Considerations should court govern determining *2 are cumulative or separate instruments discussed.
substitutionary, A. her a number other R., named the defendants benevo- among and, $5,000 each, in a executed gave
lent societies whom afterwards, about named them in list of benevolent year another 15,000 J., she also societies to whom Held dissent- each. gave (Smith, that, under at in the case, circumstances shown length ing), second should be for the first. bequest regarded substitutionary Rockingham From Circuit Court. Equity. dated Arabella her will made May 18,1867, Rice, by as follows:
bequests cousins, First. To each of her first paternal maternal, $12,000. Second. To a first cousin her father, $6,000. Rice, Eliza $6,000. Third. To Fourth. To her late father’s first Mrs. her cousin, Edgecombe, $6,000 Sarah daughter, Edgecombe, each. To two described each. persons relatives, $6,000
Fifth. Sixth. To Hon. Ichabod Goodwin, $6,000. Seventh. To four $3,000 each,— charitable societies of Portsmouth, Portsmouth Domestic namely, Society, Missionary Marine Society, Howard Humane Society, Society, Benevolent income be ap- —the to purposes of society. plied To Atheneum Eighth. Portsmouth, $3,000,—income of books purchase library. for applied To Ninth. South Parish in Portsmouth, $3,000, with directions as to of income. application $20,000 Tenth. for establishing Maine, free public library Kittery, with directions as to its use and specific application. Eleventh. To the trustees insane at Concord, asylum $20,000, its with directions application. item was as “I follows: give the fol- bequeath twelfth Boston, named charitable societies lowing of Suffolk county Massachusetts, and state sum of five thousand dollars ($5,000) each, to wit: To the Association for the Relief Aged Indigent Females, Women, Channing Sick Destitute Hospital Society the Prevention of Aid Pauperism, Seaman’s Soci- and to ety, the Boston the annual income of each of Dispensary: bequests said is to be said societies applied by purposes they instituted; and the respectively each tois principal kept and invested as fund.” permanent Thirteenth. To the Sailor’s Snug Harbor, Boston, $20,000,—income only devoted to the of society. purposes Fourteenth. To General Theological with Society, Boston, $3,000, directions as to use. cousins, Coffin, To her first the Misses her grandmother Fifteenth. Martin’s bible, ring, dated two family mourning silver tankards, and a china to match. tureen plates Sixteenth. Makes her first cousins her residuary legatees. Seventeenth. This will executors. Appoints Shaw, was drawn Lemuel Esq., counsellor-at-law. July 2,1868, the testatrix in the room of being &Lee Higginson’s safety vault in where she Boston, deposited kept without the aid counsel, wrote and executed the following codicil: “ Be it Rice, known that Arabella I, Portsmouth, do make declare this to be first codicil to last will and my testament, dated May 18, 1867: “First. I thousand dollars bequeath more to ($2,000) the fund for the Howard Benevolent two thousand Society, dollars *3 more to ($2,000) the Domestic Missionary Society, Portsmouth, in the state of New Hampshire. “Second. I and give ten thousand bequeath dollars ($10,000) more to the fund for a free library in public Kittery, in the of state Maine. “Third. the sum of bequeath five thousand dollars to each of Boston, the following societies in in the state of Massachusetts, viz.: The Harvard Benevolent the Society, Boston Provident Association, Boston Seaman’s Aid House for Society, Aged Men, Consumptives’ Home, the Massachusetts General five thousand Hospital dollars —the ($5,000) to free entirely beds in appropriated the Massachusetts General Hospital.” The bill is executor, brought by the Edwin T. Rice, direction praying of the court as what sum is to the bequeathed defendants —The Sea- man’s Aid and codicil, the will Society by and if any, — any, what sum ought to them as paid interest. The cause was heard before the late supreme judicial court, where it was determined, at the August adjourned term, 1874, that the bequest in the codicil was substitutionary cumulative; not and that the executor should account for interest after one year the death of the testatrix. The plaintiff moved for a the rehearing upon of interest, and therefore the defendants moved for a rehearing upon the construc- tion of the will and those motions were heard this court. before Sackett, II.W. T. for the took the plaintiff, following : positions I. That when a is and is known to simpliciter, the legatee, the executor is not year, and the till liable interest pay the of lapse the has been demanded the legatee. II. That when a trust is created, and a foreign is corporation nomi- nated as trust, trustee notified the executor is not chargeable with interest until after the signified has corporation the executor their acceptance of the trust. III. That the “lawful receipt,” the law shall requires taken whenever a means a paid, receipt showing that RICE t>.SOCIETY. fund,
executor has and in this means a lawfully administered his receipt signed by the trustee who had signified acceptance trust; fund, fact, this the case was point shows, paid first day such could be obtained. receipt IV. That the executor this case would not administered this law, fund had according unless he left on the files records office fund trustees probate evidence that paid he trust, who had in case accepted the end that a court equity, need, enforce its might fulfilment. V. That from and was after of the to be executor expiration year bound to have this fund on the trustee cash, hand when paid not bound to signified acceptance ITe, course, the trust. have the time. money hand, interest for it at the same pay Interest he alternative, not Nor was obligation. the cumulative bound or pay party qualified authorized to a who had itself to receive it. The trustee does fund he deny day signi- was paid trust; fied this, but he claims acceptance admitting executor, from expiration bound to and keep year, put
this fund on interest till the fund and inter- for, pay called and then to est This with trustee. position obviously incompatible rule, universally money is bound to recognized pay executor at the end of if fulfilled he have the year, rule is on hand for money for money “Where one received purpose. another, over, the use of and it interest is was his duty pay recoverable for the time of holder of delay money another is guilty neglect will not be chargeable he delay, *4 interest.” v. French, 610, Selleclc 1 Am. Cas. 611. Lead. money having When trustee retained a sum in his hands reason- so, able decided with had a do grounds he the court supposing right although against right to retain the he was money, yet charged interest, because he acted in faith. & Bullard on good Tiffany &c., ; 599 v. Trusts, Pemberton, Bruce 12 386. Ves. settled, state, It is Massachusetts and in the executor interest in only actually three classes of : Where pay they cases (1) interest; fund; where or- they receive make some use (2) (3) 232; guiltv negligence are 530 13 Mass. 1 Pick. paying over. ; 1-7; 18 H. ; ; 199; Pick. 5 N. 497 19 N. 213 21 N. H. 41 H. H. 359. N. executor has $5,000. received no interest for He has this fund any way use, constantly to his but appropriated own
it on hand from the time became due till it was received de- fendants. 37; H. Smith, He also cited and commented on v. 12 N. Payne ; 181; v. on 2 Legacies 133 Redf. on Wills Roper Wilson (ed. 1870) (cid:127) 448; 525; Law 12 C., S. Law 7 Ch. Rep., Eq. Rep., Ap. O’Leary, L. Beauelerlc, ; Diclcson, Albans 2 Atk. v. H. Dulce St. v. 636 Bussell 4 ; C. 293 1 Qlutterbuclc, ; v. N. S. v. Fhemming Bligh Benyon, 479 Benyon v. 195
BICE
3
;
v.
81-41;
Wainwright,
3
289
4 Ves.
Allen v.
Ves.
Callow,
Barclay
271;
Bandnor,
C.
Cootev.
462;
Boyd,
v.
1 Brown 0.
Ves.
Campbell
;
v. Alexan-
521;
2 Bev. 95
2
0. C.
v.
Brown
Bobley
Gillespie
Bobley,
91;
North,
145;
2
v.
2 Phil. Ch.
der, Sim. & S.
Kidd
Attorney-General
y.
389;
;
v.
1 Bro. 0. C.
Morrison,
4 Madd.
263 Bidges
Ch.
Harley,
;
Ves.,
473;
1015,1016
2
id.
Thackwell,
Jr., 464,
v.
1
Boper
Moggridge
;
on
996,
Legacies
997 Boper
cited
Massachusetts, for the defendants,
M.
Bobert
Thompson,
388;
Hatton,
v.
1 Bro. C. C.,
1 Bro. 0.
Bobinson,
v.
C.
Hooley
Bidges
note to
; Jones v.
;
Yates,
Greveling,
v.
court not without not to Boston Seaman’s Aid the codicil was Society as an inadvertent regarded cumulative, the testatrix of rather repetition will; same amount to the same society entitled to but one and that the defendants were therefore sum of the two taken fair construction $5,000, papers was, executor should The decree ordered together. pay year the defendants sum of with interest from one after the the $5,000, for a rehearing death of the testatrix. The executor moved interest; for a order as to the defendants moved rehear- thereupon ing merits of bill the construction of general involving the will and codicil. *5 I both not carefully unwilling, hope, have reexamined points, fallen as a member of the errors into which I have late
rectify any may court. has interest, only As to the this further consideration matter was The that order learned right. conviction the strengthened my erred that the late court says he claims counsel the executor Woodward, v. 391, v. N. H. as overruling Pickering treating Loring H. 12 N. 34. The counsel 6 N. H. and Smith, v. Pickering, Payne u. BICE
.196 is mistaken in court such idea. In supposing any the entertained Pickering Pickering the rule that action can be general is stated maintained for a though an legacy against demand, executor without a showing that case was held not fall within In the rule. Payne Smith the court, was directly was, course, before the point settled the same In said way. neither case is there a word about Loring interest. v. Woodward, the Chief Justice states gene Bell ral rule be, a legacy is without des pecuniary payable generally, —If it ignation time of at any the end the payment, payable year from interest; the death of the testator without but if not then paid., it bears expiration interest after the year; the support —in he cites a number of court large were satisfied that authorities. thus stated general rule was as Judge question Bell was, whether was it out of anything there case either take or rule, to call for a modification the in its rule application —and court were clearly and not. unanimously that was there opinion Much is laid in stress faet that did argument society not vote to legacy, the trust which was accept perform given. The towas, trust as a keep invest perma- principal nent fund, and the income to the of their institution. apply purposes This was nor onerous. The complicated neither was objection regarded technical, if quite thought answered, to be sufficiently answer were required, by equally technical the ex- suggestion ecutor did notify the defendants of bequest favor, their but left them to was out find it from other sources. In little reality, importance either attached to the want of vote probably by the defendants or the want of notice if executor. The the ex- probability, ecutor had been sincerely over defend- pay desirous ants would have received it him ample vouchers court, was protection doubtless the probate controlling con- sideration in determining that there shown nothing the facts take the out of the rule as If general case at the end of interest. there existed as to the amount year controversy the defendants were entitled to receive under the why no reason into seen the ex- court, should have ecutor paid money placed where from some income be derived it. As might trustee, he would hardly time, the fund to for so justified lie idle permitting long —at least, court; advice from the taking anything it, fact nobody legatee been realized has any shadow of thereto. right It cannot main be denied case extremely which, and one with troublesome, the best attention can be it, the court are For go liable this reason wrong. have care,
reexamined it much looked into all the cases again counsel, referred to well others which the many subject cumulative is discussed. The result that I am again brought, hesitation, not without doubt though certainly the conclusion reached when court was first considered, namely,
RICE v. 19T $5,000, the testatrix did intend to the two sums of not defendants but only one. word, I do state, not at do in a this time to more than propose conclusion, considerations mind my which have brought then inquire might whether those considerations are such properly by in legally determining be weighed question presented case. I have not, indeed, looked as one together, at the will instrument, but as two made the testatrix by instruments testamentary of execution of her is, the same- general object, disposition —that I of by estate. have item the codicil placed the third accordingly side of twelfth item in the- will, and have observed considered fact $5,000 items same sum of both these she has Boston; of each eleven different city benevolent institutions that these institutions, having established- for similar purpose kindred view, object of her appear worthy objects equally bounty; codicil, classification, their will and affords both intrinsic evidence that mind of the testatrix when she made the codicil was with the intention of to the class enumerated occupied adding to a number of other institu- extending equal-bounty tions which she that in other in- regarded equally deserving; every stance where she in the codicil name of a mentioned repeated legatee “ will she used the word more.” I have examined the whole and codicil together, considered the and method gen°eral scheme she seems have of her and these con- adopted estate, disposing siderations I have fact that in each of weighed against the two testa- mentary has instruments said to she the defendants, give you $5,000.” my mind, the former considerations have overbalanced latter; and this I mean to that I- say, find a balance of simply, against an intention to double the probability gift. IIf have decided, mistaken the or if be of the fore- question considerations are not going properly weighed determining it, it is not or if to be decided according preponderance probabil- ities-, then my may decision But wrong. and the question mode have deciding rightly been the correctness apprehended, decision too my depends much has been weight the considerations in one little to bearing direction, or too bearing those other. This involves an as to clearness inquiry, which, and: soundness of very apprehension judgment, proper though criticism, do comment not come at all subjects within the as the category aré recti- application legal principles, way fied that mere mistakes the law be retrieved. may ? n What, then, is the it to be 'determined understand be, What was the intention as shown testatrix left ‘Í That What do the will and read papers any) may such circumstances be considered light (if properly in her ? the court show her intention place position, been are full iu great books of declarations to the effect that first rule *7 RICE v.
198 wills, the inten- of to all must bend, which rules exposition it is tion of the testator shall expressed prevail, provided Bell, of J., consistent with the rules law. C. Smith Marshall, am- this and does not Pet. 74. rule is Certainly elementary, require But of a learned we have been referred to some remarks plification. English Lord of Justice the recent case Wilson judge, Jambs, indicate a Law Ch. which are to Rep., Ap. supposed O'Leary, I ; and case, may as much stress has laid view been at should. refer to somewhat more than otherwise length was, that of various a testator, by codicil, gave legacies his ser- amounts to nine and a one of legatees, year’s every wages substantially He which vants. a afterwards made a second was of the named former, follows : One of the copy except legatees second; the legacies codicil not named in three of the first given by the same was first to the second codicil than given by were less those to a codicil one was the second persons; legacy given by first; second not named by to servants person gift “ second codicil was of and the year’s wages, liberally interpreted Meld, contained a direction for on legacies. codicil that the payment duty not taken out that the gift case was of the rule general under instrument by subsequent to a who takes person Near the substitutionary. an earlier instrument and not cumulative of his to has this remark: close learned referred judge opinion “ has this, add that I that this case feeling would cannot only help than it if I con- throughout more time would have done which is occupied fined to that in- is, if, myself strictly my duty, legitimate —that find I had con- meant, out endeavoring stead of what the testator of the endeavoring meaning fined ascertain what was the myself he could which he left behind him.” But testamentary not have meant the by papers look at the words say court should and confine instruments, ety- their to the grammatical inquiry would at war words, construction those for this be mological rules actual in- the most fundamental was the What interpretation. testator, is in tention of the its an unmixed fact. question nature that a will must question The law be in and so the requires writing, conse- is to be found will ? It is of no What intention written than such may intention, any what have been the actual further quence is to Nothing imported intention be expressed writing. doubt But if be into the instrument construction. there incorporated as to the anby of the intrinsic furnished meaning words, then evidence evi- examination of all the extrinsic together, papers testator, &c., estate, situation of the dence as to the the relations the words considered, in order that look at may the court as that nearly may the same occupied position testator. to, are one or two other referred There observations the opinion I under- I have found more with what difficulty reconciling which I have the doctrine of the course stand the other and with cases, taken in says conclusion in this He coming my 452),— case. (p. The basis addressed elaborate able which were arguments to us was, Mr. Kay taking Mr. Pearson the two codicils out of them side, which side arisen, putting we, as testa- men of the know world accustomed to how testators make mentary case, of all the instruments, judging probabilities cannot avoid at the a cor- arriving conclusion the one rected other, and revised that the omission transcript deal £2,000, with the expressly the housekeeper alone destruction, has saved the first codicil from a casual entire *8 omission, an accidental claim legacy, which has enabled her to slip, but which is not otherwise sufficient to induce us to avoid the inference which In of we are called to draw. the whole my rule of law.” judgment, is again contention precluded by And, positive : “When is a rule of such (p. 454) construction, there law of positive as exists cases, in these in- testamentary two say, gifts by —that struments to the same individual are be construed cumulatively, —the rule of law and plain construction is not to be frittered a mere away by balance of By this I understand is probabilities.” meant, should the two codicils are not to be looked of at side by side, purpose drawing inferences as to the intention of the testator means of the ; and comparison that there is an rule of law which forbids unbending of absolutely holding to be it is bequest substitutionary when in a repeated instrument. separate Writers the law of evidence have undertaken distribute pre- of law into sumptions Gr. classes, namely, two conclusive disputable —1 14; and In Ev., sec. Mr. Greenleaf cases of says, these conclusive —“ the rule of law attaches presumption, when merely itself to circumstances ; it is not from them. a proved deduced It is not rule of infer- ence from but a rule of as testimony, protection, expedient, “ id., general sec. 32. The second of good class presumptions ”— law,” writer, of says answering juris presumptiones law, may Roman always overcome opposing proof, consists of the These, those termed as well disputable presumptions. a former, are the result be- general experience connection tween certain facts or the one found to be com- things, being usually connection, or the effect of the other. The in this panion however, class is nor so universal as render it nearly not so intimate expedient that it absolutely should be to exist presumed imperatively is so every case, being yet all evidence to it contrary rejected universal, aid of itself, and so that the law general, nearly a from jury, other, infers the one fact existence proved this absence of all evidence. mode the law defines the opposing nature and amount which it sufficient to es- evidence deems tablish on the case, a and to throw the burden proof prima facie ; and if offered, jury other are bound no evidence party opposing to find A in favor of verdict would be contrary the presumption. being Id., liable to be set aside as evidence.” sec. against it is neces- correct, this to be what Assuming admitting, —that to be discuss, now to when the court declares A fact sary prima B, of fact of law enun- proposition evidence of the existence facie is, To which does the legal class ciated, one deduce presumptions inquiry —the ? I am unable to under Wilson O'Leary belong consideration words of Lord Justice meaning any other James, first lie understood class. than that already quoted, belong rule that to the same individual He speaks gifts are to cumulatively, instruments be construed posi- rule of law, rule of law is not frittered says plain tive less This seems than rule, balance of to mean away by probabilities. for, you cannot the rule can you beyond go beyond go what is called the against evidence intrinsic extrinsic weigh law, follows, then it the matter must be inevitably, that presumption it safe to say determined consider by balancing probabilities. all the on Wills way (2d ed.) that the cases are other Redf. —see 8; answer to 1T8, regard note for the a sufficient and'that, present, remark. But it is two instruments must independ said that the be construed other, each considered substantially of each alone ently being exist; is thought that some observations did'not though of Vice-Chancellor —and the same case when Wilson O'Leary, Bacon, idea. I find him —L. countenance to that R., Bq. before nothing 525— *9 of the two are not to the kind there. Doubtless instruments if were, the would in one, be construed as they presumption him. of of But if in favor the executor instead the the against bequest the were of a it would be indeed if court thing, specific strange same has been not look into will to see the once thing could there. said have been of the Lord Hardwicke’s may Whatever soundness of Beauclerk, 636, in v. 2 I am not Duke St. Albans Atk. judgment, of Lord in v. R., aware that the M. Osborne pursued by course Alvanley, 869, Leeds, has been In that case the questioned. The Duke 5 Ves. of ¿610,000 his testator, his each to all of after- by every seven gave a child or second after- By years born wards, children. made he born after the of the gave daughter, execution thus The two the after-born ¿610,000. made for provisions same sum — side, side and it that the by were considered was held daughter rolls, not cumulative. The in his the codicil was master then, is to said, The considered question, opinion, —“ So, & in v. 2 Sim. St. Hemming 311, and codicil taken together.” Gurrey, to the C., Sir V. 320), plaintiff’s says (p. respect John Leach, —“With ¿6500each, of two of under the claim annuities two papers was of I am of second instrument not Hemming, opinion G. if not for, first, as an but as a substitution to, wholly, made addition as to in question. at least the annuities greater plainly part, is two from the form comparing This evident expression instruments, general similarity lega. from the annuities 201 cíes, and Barrow estates.” from gifts Edgeware particular And, Alexander, in 2 & St. 145, great v. Sim. the same judge, Gillespie accumulative, in not to be holding says second a codicil legacy given the first is named in (p. named in Every legatee paper again 151),—“ the other, the master’s appears by who George Gillespie, report except dead; instances, have and in amount been then several same as the first paper.” Lord speaking Ves. Wainwright, Barclay Alvanley, Cootev. Bro. C. the circumstances of Boyd (2 521), says, “Upon— C. in case, and evidence from a the two resulting comparison was struments, Lord Thurlow the second clearly opinion of the several goes accumulative.” He then to compare provisions him, and to draw conclusions case before testamentary papers from the as to intention of the comparison testator. Ves., Thurlow done Lord Thackville, Jr., Moggridge So, in discussion of subject the clearest best found Pain, Sir James Lee v. any case—that Hare Wigram, 201 — the end of of such recognized beginning from propriety comparison no and I have case propriety seen where the opinion; and of os making the inferences drawing therefrom comparison denied, intention unless it the testator been is Wilson v. My that such comparison O’Leary. opinion proper, necessary and unavoidable. I have said I attach circumstance that weight testa ” trix used the more every word instance where intro duced in beneficiary the codicil the name of a before mentioned will, and of this is denied counsel questioned propriety on the of some observations Wig strength defendants of Sir James ram Lee v. I may say that, my Pain. judgment, higher au thority on have, of this sort quoted. can therefore, attentively case to, referred and find opinion examined that, so far from down any such he laying general proposition, ad distinctly mits that considered, this is he a circumstance although carefully guards the giving himself circumstance too much against weight in him, and fortifies his drawn before position arguments well comparison testamentary instruments, of the several as the *10 axiomatic where two fact, gifts actually that are made at times, the second to first, is in addition whether stated to be so or not. He his discussion of this point wdiat remark, commences “It would abstract, in be to say, degree weight difficult is due ” to an this it, like closes when expression (p. 218), considering again case, matter at of the stage subsequent saying, The I words in formerly observations made those show that my judg ment in this more than they case particular counterbalanced discussion, other considerations” course of the (p.284). he says, v. & War. Lord (Dickson, 133, In Russell 2 Dru. Chan —“ cellor of seems to me to stated with great Ireland accuracy all that can He I on the assent to fairly says, be said subject. argu- —‘
YOL. LYI. RICE ment, in addition that, gift if a testator one to declares expressly at other another look to is to this court entitled (and purpose instru- testamentary instrument, the same at other parts gifts dec- such and in he gift any another instance makes ments), intended laration, this is to a circumstance show latter additional, much But, weight not to too still, but in substitution. hold is conclusive must not be attached to variation. To that it to circumstance, doubt, would be no important too far. It is a going show, how to that, addition, express meant he where the testator knew ” extent.’ his and a to that meaning is entitled to rely upon party rest, views This far as puts regards the matter at so entirely shows Pain, learned the in Lee v. vice-chancellor as expressed afford can this is weight which entitled one circumstance another, no exact its where measure for determining significance under different. consideration are instruments rolls, Callow, So we that, 292, see Allen v. Ves. the master circumstance, but Lord is not says, That an insignificant Alvanley, —“ it is not codicils decisive, for the one of the done thing Hatton; those who strengthen argument it does Hooley other;” contend that one of is substituted for the these dispositions “ and says, 3 Ves. the same Barclay 466, Wainwright, judge ad I meant lay this, considerable stress where the testator upon —that 2 Russ. dition, Mackenzie, he inSo, has it.” Mackenzie v. expressed which, Lord Eldon has a as it indicates remark, me, seems judgment circumstance must be entitled to considerable very testator says, true, hand, He other weight. —“ Margaret declared that the expressly ’ ‘ himby Lincoln should made be exclusive former provision testament; facts for her his last will and if there were codicil, it what say connected with this will and be difficult to might weight ought bequest. to be attached the words used concerning But there to con me, are other circumstances seems lead which, sufficient, this is trary inference.” Other cases be added but might so far as I have regards show the which authority, ground upon sup weighed by circumstance under consideration to be posed ought the court in intention the rea determining the of the testatrix. Upon son of the cannot entertain doubt. thing I have thus undertaken show that the various considerations which have inclined mind to the outset my result announced are such should court. properly weighed propose must further, what of conviction these inquire, considerations degree decision: Is mind, other, one or the to warrant a produce the construction way in this the balance decided respect according ? or must all doubts be probabilities removed, so, and, side rests the burden them ? removing the fact We start with what called a out presumption, growing the tes that a given both the codicil, afford tator intended two gifts. The authorities already referred *11 RICE v. as what Mr. regarded that this is Green- ample evidence presumption is, if no evidence the other
leaf calls a disputable presumption; to testamentary of the two way from an examination papers appears have been : in give hold intention to twice the court must gether, second shows words, other that this circumstance prima facie into the intrinsic But, looking is papers, accumulative. is and more less doubtful evidence other a wTay found, question thus see that this is raised. acumen requires great question fact, decision of which is only is its one of purely essence evidence be not received and con necessary sidered. Can what is take care that incompetent than that evidence plainer weighing against anything is nor nothing thus called more less disputable presumption than formula the ? In reality, another name for the whole balancing probabilities this: against seems to come when intrinsic evidence simply is found in the will the circumstance of a presumption twice; made in both is of an intention to gift being before evidence can be held that the intention was make but gift, one evidence must be overbalanced stronger met and piece intrinsic evidence the other am of when the way. opinion question is thus it is doubt, raised to be determined the evi put ; I think dence the matter has balancing probabilities been to, so treated all including the cases referred practically v. Wilson already the remark O'Leary, notwithstanding quoted the opinion in that case, effect rule is °not law to be frit positive aby tered mere away balance of probabilities. * Stanley, T J., C. C. am also that the opinion defendants in the is regarded substitutionary, cumulative. to be determined What was the intention of the tes
tatrix ? That
is
intention
to
by
ascertained from the
testamentary
which she left,
aided
such circumstances
papers
as may properly be
considered
the court.
is
There
no deviation from
rule,
all the
together,
papers
constitute
act are to be taken
codicils,
all
embracing
papers referred
with the same.” Redf. on Wills
incorporated
1864)
(ed.
* J., Cushing, C. did sit.
204 and not but that substitutionary; codicil is cumulative presumption have been held it.” very not circumstances to control strong, slight 405; Coote Brown C. C. Gas. Lead. (Perkins’s ed.) Eq., Boyd, 544; & 10 Johns. Wall.,notes, Yates, Hare DeWitt sum, by of the same instru- legacies given “Where are ments, arise considerable doubt in mind whether there will always Hence, not they are or mere repetitions. although general pre- were intended to be cumulative will gifts sumption prevail of all it is that contrary the absence evident ground presumption, mind of contrary of a the testator will slight evidences purpose conclusion; incline court to such a and some of the more adopt conclusion that the repetition recent cases seem to incline mere or codicil, the will or in an additional before legacies not in alone to form codicil, allow both.” 2 Redf. on Wills ground itself sufficient ought and notes. 510, 511, 1866) (ed. In what was the intention of testa- light these principles, left, and trix, as derived from the she papers So as these are intrinsic evidence contained them? far defendants in the concerned, by was the codicil as them intended ? This is a cumulative, mined substitutionary fact, deter- causes, in civil court, all fact questions like to be considered that of the evidence competent purpose, balancing the executor. the burden proof being not as substitute It evident the codicil was intended small only very fact that original proportion codicil; fact, with the named therein are named legatees —in “ whom, terms, she more” than express gives of those to exception will, the the only had defendants are named legatees she will. codicil named in the seems have will, and as an addition to her been the testatrix made designed by to some of the giving legatees sole for under it purpose purpose to others not legacies an mentioned amount, additional it. was a business good that the testatrix person capac- conceded hand; her own that she understood it she drew the codicil with ity In to me that this, view of seems language. and effect of the force “ more,” which she used in the is to attached the word great weight she the additional amounts to gave where reasonable various items can it be explained what Upon hypothesis some legatees. some, additional amounts to .that when giving used word that she claim, an additional amount giving it the defendants when, did not use it intention to double de- Had to them ? been easily way in the same she been done fendants, very could have “more;” use of word to the others increased done so. would have most natural infei'ence it is the similar in six all societies, she names third item of the codicil is the defend- The third in that list in Boston. their all objects, five thousand dollars addition to give ants’. If she intended RICE v. her to
the amount would been and natural for easy have first, them have said, bequeath named and she would five more,” the Boston Seaman’s Aid thousand dollars Society five thousand those societies, naming dollars to each of the named following If mentioned in to the de- the will. she had intended the legacy substitution, fendants as an it would have accumulation *13 been in its other cumulative proper place immediately following and not in in legacies, the middle of where another clause legacies are first time. legatees If cumulative, it be regarded as it is not to the according general no testatrix, as shown both in the will codicil. To plan and similar society Boston, elsewhere, in or does more than five give she thousand dollars, Snug Harbor, the Sailors’ and that except corporation or If society is named in the codicil. it her probably be said wealth was derived from in were and engaged, business which sailors on this account, and beset and which knowing perils temptations them when in sea, as as anxious to port testify well when on she was them, her appreciation and, therefore, them and to aid this intended as an it in class accumulation, may answered, that the interest is shown fact that will thousand dollars she gave twenty to the Harbor, Sailors’ defendants, Snug fivethousand dollars they both having the same object in view—a amount than she larger gave to other use, charitable for the of a free except founding pub- lic library in Kittery, the of her birthplace father. too, The expression, used when she additional to the Portsmouth gives societies the fund for the free is ex- public library Kittery, plicit, indicates that did plainly she not mean that her intentions wishes, as to them, should doubt. In the will four open Portsmouth societies are grouped together, she them three gives thousand dollars each. In the codicil says, give she bequeath —“ two thousand dollars to the fund more for the benefit the Howard Be- nevolent Society, and two thousand dollars more to the Mis- Domestic sionary Society.” "Whatever been her intentions as to the de- may have fendants, she so herself as to expressed to leave doubt her wishes with regard bounty whom she wished to objects additional and so legacies; herself to them is regard with expressing my mind inten- very convincing tion with of what "washer question me, too, the defendants. It seems to that a regard strong argument is drawn from the all in Boston sim- fact that to societies of a ilar character This and similar an amount. objects the gives equal view the cases of the tes- preserves symmetry impartiality tatrix. also fact, codicil is strengthened just would have in- been in favor of the defendants been provision mistake, serted of the codicil show remaining just parts that it would been, bequest have she had intended to double the to the defendants.
I am aware con- codicil, that the word as used is not “more,” clusive far to. but that it is and goes very entitled to great weight, RICE the tes- from other arguments parts to be deduced
strengthen laid upon stress is be doubted. Great cannot tamentary papers, Pain, position case of Lee v. 4 Hare support a careful cumulative, substitutionary and not question like the present, it is not examination show that many respects expressions admits that and that learned vice-chancellor even there the in deter- this, weight similar to those are not thought I have not similar to those here mining questions it presented. cases number into an examination of the large advisable go stating cited, been but have the rather myself contented opinion some of reasons which have led me to concur not cumulative. to the defendants substitutionary, J., principal The rule for dissenting. solving Smith, Morrison, As down in Ridges in this is well settled. laid raised that, where Lord Chancellor 889, by Bro. C. C. Thurlow, it be a codicil as well as legacy by testator gives isitwill, to the same who is more, less, legatee person equal, v. Hatton (see accumulation.” This rule was adopted an Hooley *14 ob- case, Lord Thurlow v. Morrison, note at end Ridges 338), care; accompanied with abundant and he served, was examined cases the unnecessary a remark that it was repeat observation with said, which, he Mr. J. the able reading very after opinion Aston, the subject. doctrine of the law contained the whole in decisions, the the rule, by Mr. sums as established Roberts up “ according concise words: The state of the presumption, these varying result settled case, by seems to be circumstances the same criteria, viz.: Where specific the following authorities upon is one) the testator has or a diamond where ring thing corpus (as byor instrument, the same by to the same either person, twice given but a it is then, instruments, thing, in nature different repetition. 100i., by is twice given same Where the quantity, legatee; is instrument, against same the presumption simpliciter instrument, with is the same by but where the quantity circum- it, material or any additional cause assigned is the second gift, presumption of variation accompanying stance Where in of the accumulation. favor the executor against turned a less, a after distinct or writings, larger in two sums are given equal an accumulation. is construed the latter larger, gift a less after or “ of the the the two case, legacies in a wherein But though presumption instruments, against leans in distinct or occur same sum quantity is turned it is executor, only presumption yet simpliciter, instru- in both assigned is the same cause expressly where way other Wills 2 on Rob. any additional reason.” for the gift, ments 13,14, 4, No. 128, lib. de 8, Menochius prces. citing presumptionibus, ed. 550. 7, 20, ch. fol. Swinb., part 156, by 10 Johns. Yates, laid down in rule is DeWitt The same fro rule on this subject, The general in words : C. these ma J., Kent, review of that where be, the numerous cases, evidently appears sum one is can in the same take repeated, writing, legatee substitution, and sums latter sum is to bo The held bequeathed. they are evident intention cumulatively, not taken unless there be some show considered, they should be so and it with the lays legatee intention and But where rebut the contrary presumption. instruments, will in the one case bequests are as different legatee, favor of the other, the presumption and the the execu- burden of is cast presumption contesting tor. cumulation, The either way, presumption against because instrument, or whether repeated the same favor of it, instruments, is liable to be because controlled internal and the circumstances repelled by evidence the case.” The question of cumulative has often arisen the English legacies courts, and has been discussed very learnedly ably judges of those courts. or case, We have been cited to no in this the other New' states, counsel, on England their briefs subject, argu- ments. I am not aware that this has until now been before question the courts of this state. The was familiar to civil the clear- law, which required est evidence of intention to double when the legacies repetition 30, 1, the same instrument. Dig. Suisse Lowther, 201, Pain, Hare and Lee v. Hare cases very much in case, the former Sir point. James Wigram, V. C., remarked, the cumulative charac- argument against —“ ter of the legacy, by the codicil am now considering, founded, first, the coincidence in amount the two former between and, the latter on the fact that the same secondly, leg- acies given to Mr. Croker others word codicil have the ’ ‘ them, additional while in appended to Suisse word is not used. *15 out Leaving the of the introductory part the ‘ question would certainly whether the the word ad- arise, effect of ’ ditional to some of the in gifts, and omitted that to the plaintiff, would be to leave his legacy gifts. a substitution for The prior cases, however, decided the there is expressly where point, nothing words, the circumstance of such the court does omitting not consider it to sufficient control that which is the mean- prima facie of the of ing Where is bequest. the mere the testator the bounty only motive for and no apparent other is bequest, expressed, rule is that the shall in take addition.” legatee Lee v. Pain, case, is a and one on all English fours leading supra, with this of cumulative upon question By will, legacies. testatrix, other to thirteen who amongst legacies, gave are persons, ¿£100 named in one sentence, Mr. Brown was one of them. apiece: By will, the first codicil, after some of in varying bequests to the giving Common, trustees of the on at which she chapel Clapham sum of attended, ¿£100, to be laid out for benefit of the chapel, RICE v. of the
she Mr. him in this as minister gave Brown, describing place By ¿£100, said sum of her will. and then she confirmed chapel,” Brown, her third and fourth to Mr. legacies expressed codicils gave in him. The question addition to what she had given before arose first The to whom the papers codicil. master mere been that the the first codicil was legacy sent considered and allowed Mr. Brown will, one repetition ¿£100 Sir James only, namely, that in the first codicil. Wigram, re Y. marked, O., held that Mr. Brown was both legacies, entitled instruments, The two different legacies given being —“ two legatee both, gifts is entitled to unless the effect of the separate can be taken found ih the construction to be away something instru second law. If instrument, or each by presumption individual, manifestly ments to the same it would simply gives if were contradict the of one or other instrument the legatee effect in that allowed and, to claim he would legacies, accordingly, both inis legacies case be entitled to both and as the both simple such right instruments, no cases found the construction and effect intended extrinsic that the legatee evidence admissible prove * * * to in first circumstance relied take one The legacy only. was, has that in first codicil the testatrix support report in addition are expressed thereby given, given that some of the legacies in the is not used will, those given expression were referred to which stress bequest to Mr. Brown cases ab been stract, It would be say, laid like expressions. difficult this. The what to an like expression due degree weight ’ ‘ add the effect ‘words in addition do not themselves anything ad would be those words. The simple legacies bequest not, argu ditional The without them. it was question put ment, I am to words, I am to but whether those reject because only super than its less particular bequest proper operation, fluous cannot words are in another bequest. argument used two carried that. out of the contrast between beyond arises the other are, of which the words different forms of to one bequest, not, said, of which it is an inference they are applied, raising, — forms must intention the two cases have been because will to each so. case of legacies by expression simple of a B, individuals, A and and no other individuals, of those and one only to the same giving legacies given in addition to the legacy legacies (the B) expressed him would arise whether less than proper to A, only effect was to be to the because legal bequest superfluous might B. But whatever effect words were used in the bequest ’ £ case, in addition that simple expression to both legacies, as, favor of A’s claim circumstances appeared *16 — A C, as to D, E, if the well will contained example, codicil, very in B, C, and E not named D, were —a be, then in A’s Eor the favor would argument would arise. RICE A also, unless C, and E D, name and not A in the codicil Why name ?will as under the as well under codicil was Yes., to take [See intended dif be it might such an argument, And in the lace of Jr., 473.] him. law gave additional legacy ficult to A of the deprive Perhaps words. such upon laid little stress certainly The courts relied have been never far to say they it would not too going out arising reasoning or rebut confirm judgment, except in which can be produced think I do not of wills. parts of a a legatee alone in such words depriving has acted upon court instrument.” him a second under legacy given sec. 13, 51), Wills, Redf. on ch. his work Judge (2 Redfield, afford commonly case will It is that each remarks, particular obvious —“ nam satisfactory, more or less some ground conjecture for the pur or is than once is a mere ing repetition, more gift admitted, in the must therefore pose bounty. enhancing Jones Jus. of an language eminent Hornblower, judge (Ch. distinctions all the nice that, notwithstanding Har. Creveling, 127), must come we this subject, which at last taken the courts by have been intention What was the sense question, to the common plain, of sur the light viewed in as indicated testator, language, ” circumstances ? rounding clause 18, The twelfth her will “ May Arabella Rice executed follow- to the give bequeath as follows: Twelfth. of Suffolk county ing Boston, named societies charitable each, Massachusetts, dollars the sum of five thousand (§5,000) state Females,
to wit: To to for Aged Indigent the Association the Relief Women, for and Destitute Channing Sick Hospital Aid Society, to the Seaman’s Society the Prevention Pauperism, said be- of each of the annual income the Boston Dispensary: they to which is to be said societies to the quests applied purposes of each is to instituted, kept and the respectively principal invested as a fund.” permanent written On the second she executed a July, day clause, she herself, first will was theBy the room where her kept. Society, gave the fund for the Howard Benevolent §2,000 more to in Portsmouth. more to the Domestic §2,000 Missionary Society free fund By the more to the §10,000 second clause she gave Me. public library ELittery, and bequeath The third follows: “Third. clause is as Bos- sum of societies following thousand to each of the five dollars Benevolent Howard ton, Massachusetts, viz.: The the state of Aid So- Association, Boston Seaman’s Society, the Boston Provident Massachusetts Men, Home, the ciety, House for Aged Consumptives’ five Infants’ Hospital and the Massachusetts General Asylum, —the thousand to free beds entirely dollars to be appropriated (§5,000) the Massachusetts General Hospital.” defendants The executor to the contends the legacy by the defendants for the substitutionary *17 RICE the codicil will; that, in was written fact, the defendants’ name included mistake, already she not that it liad been remembering arguments,— will. In advances two of this the executor theory support sym- and testatrix, that founded character (1) alleged on the founded will is and metry method with which her drawn (2) will on the context intrinsic furnished evidence me, codicil. if well seems arguments, These two grounded, of examin- For the purpose inconsistent with and defeat each other. classification a convenient ing soundness of these adopt positions, defend- furnished legacies the will given by ants’ brief. contains 16 clauses. class I. cousins, first The testatrix to her gives legacies equal residu- 16. e., cousins, makes the i. her first She same persons, ary legatees, amongst the residue them. dividing equally described 2-6. variously She to several gives equal legacies persons, as first relatives of her late and as second cousins father shows This own.,and to as a relative. Goodwin, Gov. not described between equality equality between different classes of of legatees, legatees class. of Portsmouth. 7. She to four charitable societies gives legacies equal society. 9. to a Slie like gives legacies literary religious literary to another viz., $20,000,
10.She a mu-ch gives legacy, larger society. II. $20,000. She Insane at Concord gives Asylum ; but legacies 12. of Boston equal She five charitable societies gives soci- charitable the amount is than to the Portsmouth larger eties. Harbor,” Snug 13. Sailors’ She society a charitable gives —the of seamen care
whose as that of the defendants’—the is the same object 12. in clause —a the defendants as that large four times to that society 14. like literary She a Boston gives literary society. clause to the Portsmouth them, cousins, and first gives 15. She out two of her twelve selects of silver articles name, Bible, an ancient certain ring, ware, family. china heirlooms of the find,— we they the facts as
Taking appear degree, in the same 1. a class of relatives, That testatrix gave equal legacies. equal a stranger, and to 2. To not of the same degree, relatives legacies. equal legacies. 3. of different literary places, To societies legacies. places, unequal 4. 5. To societies To charitable equal legacies. of the same place, charitable societies some legacies. unequal of the same place, 6. To other charitable societies name, relatives, specific two of designated To twelve connected associations value, long
'of certain articles of special therewith. v. SOCIETY.
RICE disposing do not find here of a systematic plan evidence of her she had no such excludes the idea that preferences property, *18 pre- are her first cousins among ferred contrary, her relatives. On the two of and silver Bible, other ten in of her disposing ring, above the feelings ware, and of evidently china for which she cherished —articles for attachment, family been down in the having from their handed Harbor to several the generations. Snug Sailors’ char- §20,000, a sum four times than that seven other larger given with the Boston, itable in and to a of like society societies given objects defendants’, seamen, took a in welfare indicates that she interest the special influences and in the efforts to save them from the degrading there is which it are too often surrounded. be said that they Can limit to her in this ? which be affixed bounty respect can But, that will shows all systematic plan the the granting it, claimed the seventh the codicil it. unmistakably By overturns to the Society, clause the will, the she to Portsmouth Marine gives Domestic to the and Society, the Missionary Society, to Howard Benevolent Portsmouth, sum all the Society, Humane charitable societies of §3,000 each, the to be as perma- invested and principal preserved fund, nent ble and the annual charita- only income for the expended of her purposes By of said societies the first respectively. clause “ §2,000 to she the Benevo- gives more fund the Howard in Society, §2,000 Society lent and tomore the Domestic Missionary Portsmouth, H.” over the N. These two societies are thus preferred Marine the seventh them Society Society, Humane mentioned jointly will, socie- clause the over all the other charitable ties named in is cor- the the if including defendants the plaintiff rect, or the if is correct. defendants the defendants’ except position “ The use of the word more” to do clearly just intention indicates what the term; law would absence of presume sum the mentioned in the codicil is in to the addition the sum given Lee v. was unnec- will. Pain Suisse v. Lowther, The term supra. essary, and no significance, so as it throws light upon far except her intentions in to respect question. In the second clause of the codicil she more §10,000 gives fund for library Kittery, Me. public “ Thus far in the codicil the use the word more” was appropriate, were because in fact the first legacies second of the codicil clauses addition given same beneficiaries will; and seen, unnecessary, changed we have was although, yet legal inference, no was desirous served to testatrix only indicate clearly of her the sums in her will to some increasing §5,000 third clause, by We now come which she legatees. gives each of one men- seven charitable institutions in third Boston—the defendants. As six been being tioned neither of for the first now mentioned made legatees but inac- them, it would as to time, been, inappropriate, ” in the third clause curate, have inserted the word more RICE v. codicil. been could have There is no the word the sentence where place six inserted so as to the other apply defendants societies, reason, some the whole sentence. For reconstructing societies, she probably because all were Massachusetts Boston they included them all in third defendants clause the codicil. The could not be clause, because conveniently included first sum which mentioned she wished to the two give Portsmouth societies clause, therein sum each; was $2,000 because nor second given the town of But additional sum Kittery $10,000. she wished to other six Boston being the defendants natural and place other societies convenient ($5,000), to insert the was in with the clause, defendants’ name third true, Boston societies, amount., she gave the same whom might have added a fourth clause for mention of the defendants’ cumulative; so, society gift to them intended too, she *19 substituted the words that the might legacy inserted for that given will, way if she had chosen to do it in that —for it will be- be that twelfth of the sum observed clause the will invested, queathed only was to be and the income used for the charitable purposes while the codicil the is society, gift simpliciter, both income and of the the uncontrolled subject disposal principal it may defendants for of their And society. the charitable purposes well be testatrix, assumed that a being intelligence woman familiar its con- her, with her will or at witli ability, before least in- a tents, tended the lawyer, herself aid from writing the codicil $5,000 society of the second be at the legacy disposal legacy. without the with which she had surrounded the first restrictions How else can it mentioned be the five Boston societies explained only the twelfth will are allowed the income clause to expend of their the six other Boston mentioned legacies, societies while Is third manner? clause of the codicil in the same were not restricted after not the months inference some fourteen plain, having, in- $50,000 execution of of, probably her some more dispose come intended that the estate, during large period lasting a monu- first should remain as legacy the defendants re- ment with the that would be unfortunate memory men year given from the legacy lieved from income year to such while second would remain to be applied society might immediate and necessities as the wants pressing ? not this a of a double legacy, demand imperatively Is second gift, a material of variation circumstance accompanying in favor of so that turned the executor against is presumption ” 2? Rob. on Wills 8. Are these legacies ejusdem accumulation is, that that to raise a not, pre- If then the rule fact generis? tends Masters v. Mas- were intended to be cumulative. they sumption sec, one of 421; Wills, 9. Where 1 P. Wms. 2 Redf. ch. ters, will contingently, they is and the other absolutely, only the sums 735. So Peacock, v. gifts. 1lodges as distinct Yes. regarded v. Ridges Morrison, where at times. gifts become different payable Madd. Beach, 5 351. 462; Hurst v. Currie 17 Ves. supra; Pye, I think the true C., Y. result case, said, the latter Sir Leach, John —“ is stated thus: decisions, they point, apply present and in instruments, both Where a testator leaves two the court a same person, considering given legacy simplieiter gifts, intend two awards facie, that to has twice given, must, he who prima and it both is indifferent second legatee legacies first; than the amount, is of or or but if less, the same larger, are not the mo instruments the simplieiter, tive of is and in instruments the same gift is both expressed, motive the court considers and the same sum these two expressed, given, did coincidences as that the testator raising presumption second mean second but meant only repetition instrument gift, the former gift. “ This where the double raises presumption coincidence sum, occurs in botli motive, and the same instruments. motive, will not raise motive, if in it either instrument there be same; the sums be the nor it raise expressed, although it instruments, the same both the sums motive expressed different,” so, And less legatee where a second beneficial than a a one, already favor, this adds to the in his previous presumption Lowther, Suisse v. gift 433; distinct intended. Masters supra, Masters, P. Wms. in favor accumulation presumption strengthened by any circumstances of difference between the two gifts, whether be found in the ment, amount,in character which is given, the mode of enjoy- *20 interest, in the of or in for extent the motive the bounty. Suisse is a Lowther, Here and marked clear difference in supra, and of in fund, character mode which enjoyment these legacies are given. The first is to remain the income perpetual only can be ex- for pended society. the charitable of the The purposes second is a without restrictions. And to legacy make simplieiter, this dis- marked, more it will tinction be observed that the Massachusetts Gen- eral out in the third singled alone clause of the Hospital six and the to it is the other legatees, legacy appropriated entirely to free beds. 201, in Lee v. Pain, V. C., says true value supra, Wigram, d “ of more,” of the fact of the wor or presence in addi like, others, or the in some cases and not in may tion,” is, that it is a cir be cumstance which corroborate or corroborated by facts, and so intention of the testatrix. particular show some Failing such character systematic unbending discover of as the plan executor having the codicil broken in claims, execution of what is in the there little ever of there corroborate or system “ use of the word by Corroborated more.” there is Undoubtedly or As a general more or less of will. plan system every rule, every life, one of events
person this, impressed the solemn of approaches it with a And sense of the work. of the gravity responsibility of would be idle system unusual evidence testatrix exhibited deny I will; but fail of her estate disposition method the idea see that it was that inflexible that would exclude character exercise; while that she had the first and did fail to which she preferences, show, as codicil, attempted second clauses her have bounty she did have prove preferences, among objects legacy the same she class, very large exercised. Harbor, addi- $20,000 her in her will to the Sailors’ given by Snug tion to to the defendants $5,000 given a sum all other char- nearly legacies to the amount of all her equal is very itable religious societies), societies literary (exclusive the cause which she was strong evidence that of seamen one to add affords a she wished deeply interested, why reason strong in her to the another sum of $5,000 to the defendants by giving codicil. March an act Again: approved argument, appeared “ 1867, Society Port 1, Boston name of the Managers societies known as of the ” ” “ under the united Society the Seaman’s Aid were will was Aid Her “Boston Port Seaman’s Society.” 18, soon before com- executed after 1867), probably (May used the and so she munity become aware of the generally change, “ But her codicil old name will of the Seaman’s Aid Society.” re- in which she year was executed more than later 1868), (July Aid Society.” to the name Boston fers Seaman’s society argument, dual
The may her character of the counsel society, suggested she double furnished her with a reason should wish to it. cumulative, Another reason these should beheld can why counsel not better than learned express language to consider the defendants use of the word more.’ his brief. “Here it is again important ‘ rule, had been no By if there general by use of the distinction between the word gifts made ’ ‘ would would cumulative with more superfluous, gifts it; for one as well with used is not class superfluous, out of are, already more to the use of the fund, in addition created—£ gifts ’ are her Here it is show the necessary fund words. to the use, but when without the restriction as gift; gives simply absence, its instead unnecessary word, being omits she against defendants, is a circumstance the intention to be showing *21 for claim, take codicil the they they $5,000 given by the the uses of society.” the general is to me, Another occurs to the second be held difficulty legacy will Under which instrument the first, a the repetition ? If under the the is for an gift express pur- defendants take then used; the only must the income invested, pose, principal if under and more codicil, hut then the was gift directly simpliciter,
RICE SOCIETY. beneficent to is held one society. reason very why to be a repetition another, the motives or is because substitutionary, for But giving uses are the same. to be of the legacies made here is a case different, where but the not must be only the motives uses are different. widely well may If for asked, was substituted that in the understand what she ? Did not will, why did not so she say the testatrix intelligence was ? doing She sufficient say, in the first and aid of a second of to codicil, clauses “ lawyer, that the ”—not gifts gifts were fund more simplieiter, but additions to the and methodical If was she the intelligent fund. woman the claims, executor the legacy to substitute intended the codicil to defendants, for the legacy a gift simplieiter, in the will, to be which was restriction burdened with the perpetual invested and say the income did not she so only used, why apt words? I concede the the testa- freely am sense of intelligence good and I trix, she entirely satisfied did so because say that she did not so intend. She from the intended what the law just presumes used, she language cumu- second gift gift simplieiter, lative, while the first and if not fund; she gift intended to be kept in perpetual her, remembrance of be a would, fact, perpetual monument for her munificence to the unfortunate class persons whose benefit its annual income would bo devoted. Again : the amount, gift legacy by the codicil of the legacies by will to class, one of a explained upon is readily supposition that her intentions as to what that one were they were as to the defendants’ others. But claims plaintiff' name was inserted third through forgetful- clause the codicil ness or mistake. will. The forgotten can her hardly testatrix had suppose codicil, herself, is,— sentence of opening written by “ Be it known that I, make and Portsmouth, Arabella do Rice, declare this to be a first dated my testament, codicil to last will and May 18, 1867.” This codicil was w'ritten vault herself, safety room where will in as I and, safe think we deposited keeping, warranted ces to will presuming, before her. From the referen n contained i it is clearly apparent had it before or im her, was familiar with its contents. The extreme that a woman so is claimed probability to have ing careful and methodical as she been, with her will mak reach, or either before her within such a mistake, is a against too possibility weighed remote diffi favor of presumption cumulation; while if there be here, occasioned in not culty saying want of in the testatrix care this in to the defendants the codicil was substitution it, pecu in addition to saying that it was benefit of niary and not the legatee, entitled residuary legatees, Pain, the doubt which that want of Lee v. care supra, occasioned. *22 BENNETT DANVILLE. is itself a for an is not claimed here that the codicil substitution It for the resemblance between point integral part will and the codicil arises out of the these defendants. legacies in a will are for the case legatees all the provided Where may to the claim that the testator have intended to substitute is open of the will which given. for integral part the codicil and here, case does arise there no occasion to pursue But that in that direction. inquiry interest, cases was settled rule such question As N. H. and I Woodward, see occasion to Loring are entitled to after one year The defendants interest its correctness. the death of the testatrix. from am of the defendants are entitled both legacies.
And I opinion entered, is to be in accordancewith the views A majority decree court. v. Danville. Bennett Dec. 7, 1875.
Timber—Tenant life. for estate, life of it was referred of the tenant for real the petition On be for the benefit "would report to inquire master and timber should be cut. wood any part estate Rockingham Circuit Court. From in this was in possession that he represented The petitioner estate, the in- of certain real with the right expend life tenant said that at his real he should deem decease proper come was, claimed, the will he descend to under which estate personal children, any; he divided between his should be equally and and childless, die then said real estate was be held he should in case said will specified. of Danville certain purposes town of this real estate further certain represented portions many years’ of wood and timber heavy with a growth covered
were would be nothing had attained its growth; and which standing, that the same standing; or value its longer its growth added sold, both lumber, into wood off, cut and converted ought petitioner might husbandry, good the principles of the wood and from the sale land, some income derive timber. author- might that some person the petitioner prayed Wherefore the same convert timber, said wood sell ized cut