313 Mass. 739 | Mass. | 1943
This is a petition for the interpretation of the will of Mary T. Riddle, late of Barnstable, who died on January 1, 1941. By her will she gave to twelve persons pecuniary legacies ranging from $100 to $1,500, and
Her will continued as follows: “All the rest, residue and remainder of my estates, real and personal, (with the exception of certain articles of jewelry and personal effects listed by me before my death with instructions as to their distribution) to be divided equally between Condita Riley of Boston, Mass, and Mary Catherine Gillis of Hyannis, Mass.
“The articles of jewelry and personal effects listed for distribution, and referred to above, are to be distributed according to said list by the Executor of this will.”
Then follow two legacies of $100 each “from the rest and residue of my estate,” a devise of $, cemetery lot, and a provision for the cancellation and discharge of a $500 note and mortgage given by one Mabel Phinney.
The Probate Court entered a decree, adjudging that the provision for the distribution of “certain articles of jewelry and personal effects” according to the list was void, ordering their distribution to the residuary legatees, and declaring that the residuary clause with that provision stricken out was valid. The petitioner, who is the sole heir and next of kin of the testatrix, appealed.
The unattested list was not a valid testamentary gift. Thayer v. Wellington, 9 Allen, 283. Old Colony Trust Co. v. Cleveland, 291 Mass. 380. The personal property listed passes under the residuary clause, unless the will shows a clear intention to the contrary. Thayer v. Wellington, 9 Allen, 283, 295, 297. Bigelow v. Gillott, 123 Mass. 102, 106, 107. Batchelder, petitioner, 147 Mass. 465, 468. Bushby v. Newhall, 212 Mass. 432. Casey v. Genter, 276 Mass. 165, 170. Wellman v. Carter, 286 Mass. 237, 249, 250. There is a strong presumption against intestacy. Old Colony Trust Co. v. Treadwell, 312 Mass. 214, 216.
The legacies which follow the residuary clause in the will have the same effect as though they preceded it. They are payable “from the rest and residue” in the sense that the rest and residue is thereby reduced. We cannot agree with the appellant that the whole residuary clause is void. Even the provision with respect to the goods on the list is not
Decree affirmed.