279 Mass. 473 | Mass. | 1932
The questions here presented involve the interpretation of the will of Charles Cummings. He died testate in 1907 leaving a son, George D. Cummings, whose wife was Anna F. Cummings and whose daughter was Alice J. Cummings. Anna F. Cummings died in 1916. Alice J. Cummings married Lancaster H. Heustis and died in 1923 leaving her husband (who was appointed administrator of her estate) and three minor children. George D. Cummings, having survived both his wife and daughter, died in 1928. He was appointed, in 1907, executor of the will of the testator and continued to be such executor until his death. The testator by the first clause of his will .gave to his son, George D. Cummings, “all my estate, real, personal or mixed and wherever found and however situated, to have and to hold the same for and during the term of his natural life, for his proper use, benefit and support and maintenance, he to have the income thereof and also as much of the principal sum as he may deem necessary for the comfortable support of himself or of his family.” The fifth clause of the will is in these words:
The hearing was upon an agreed statement of facts. Therefore this court considers the questions involved without reference to the decision of the trial judge. Sanderson v. Norcross, 242 Mass. 43, 44.
The accepted rule for the interpretation of a will is to
The first clause of the will contains words of unmistakable import to the effect that George D. Cummings is to have the use of the entire estate of the testator during his life, and all the income thereof. This thought is emphasized to the extent of redundancy. Such a positive provision perhaps may in conceivable instances be cut down by a subsequent repugnant clause. Shattuck v. Balcom, 170 Mass. 245, 251. But the phraseology here used in its context goes far toward expressing a purpose intended to be regnant over other parts of the instrument. It was the provision made by the testator for his only child, a son, who at the date of the will was about fifty years old. Upon that child rested the burden of supporting his wife and daughter, who were the chief beneficiaries under the fifth clause of the will. In him the testator manifestly had great confidence, for he was named executor and exempted from giving sureties upon his official bond. The first clause must be considered in connection with the fifth clause.
The first sentence of the fifth clause may be disregarded because it never became operative, since Anna F. Cummings did not survive George D. Cummings. The rest of that clause relates to the deposit of $1,000 in the savings bank. That provision was designed primarily for the benefit of Anna F. Cummings. The requirement that the de
It follows from this interpretation of the will that there was no occasion to reopen the accounts first to seventh, both inclusive, of George D. Cummings as executor of the will of the testator, and to modify the eighth and final account as filed by Edward E. Elder, executor of the will of George D. Cummings, because there was no error in the accounts as filed touching the disposition of the income derived during the life of George D. Cummings from the deposit of $1,000 in the savings bank made pursuant to the fifth clause of the will. Such income was rightly paid to George D. Cummings as beneficiary for his life.
The provisions of clause fifth as to the principal of the deposit in the savings bank remain to be determined. The terms of the second sentence of that clause are mandatory and peremptory to the effect that the deposit shall be made as soon after the decease of the testator “as may be” and that it shall there remain until the death of the son. Those two directions are dominant concerning that deposit. They govern all that follows on the subject. This gift was pri
It follows from this analysis and interpretation of the first and fifth clauses of the will that the estate of George
The result is that, in the petition for instructions, the decree must be modified by striking out the first paragraph and by changing the second paragraph so as to direct the payment of the deposit in the savings bank with dividends declared thereon since the death of George D. Cummings to the administrator of the estate of Alice J. Heustis, formerly Alice J. Cummings, and that costs of this appeal (in addition to the costs in the decree) be in the discretion of the Probate Court. The decree on the petition to reopen the first to seventh accounts, both inclusive, of George D. Cummings as executor, is reversed and a decree is to be entered denying that petition. The decree allowing the eighth account is reversed and a new decree not inconsistent with this opinion is to be entered allowing that account.
Ordered accordingly.