310 Mass. 433 | Mass. | 1941
The petitioner, formerly Dorothy Davis, seeks to compel the respondent, her brother, to pay to her a legacy of $1,100 given to her under the will of their father, Frederick P. Davis, and in the will charged upon the rents and proceeds of real estate in Boston devised to the respondent.
The will, after providing for the payment of debts and funeral charges, devises the house at 89 Walk Hill Street, with an adjoining lot of land, to the testator’s son Lionel Alfonse Davis (the respondent), and then continues as follows: -
"Out of the rents and proceeds of the estate mentioned He is to pay Madeline Davis Kimball, my daughter, eleven hundred dollars in or within two years;
“He is to pay Leonore Davis, my daughter, eleven hundred dollars in or within four years;
"He is to pay Dorothy Davis, my daughter, eleven hundred dollars in or within six years.
"I do not instruct him to pay anything to my son Fred A. Davis nor to my daughter Bernice Claire Davis Walsh, because they have been given a similar amount during my lifetime.”
The will then directs that an ‘ ‘ insurance policy be divided ” equally among the testator’s living grandchildren and bequeaths any "equities” “in the Monumental business” and all assets of the business to his son Fred A. Davis. The remainder of the estate is to be equally divided among the testator’s children, and the respondent is nominated as executor. The will is dated December 18, 1930. The re
Little help is to be had from attempts to define the words rents and proceeds apart from the particular circumstances under which this testator used them. Thus it has been said that proceeds “is á word of varying significance, employed with different meanings.” It may refer either to net receipts or to gross receipts. Morrison v. Palmer, 226 Mass. 383, 386. Chase v. Union National Bank of Lowell, 275 Mass. 503, 507. See Commonwealth v. Alexander, 185 Mass. 551, 553; Daly v. Crawford, 279 Mass. 262, 267. Such insight into the circumstances of the testator and his probable intent as the record affords comes from oral statements of counsel at the hearing in the Probate Court which were agreed to be true. From these the following appears: The testator had two sons and four daughters, all mentioned in the will. He had built the Walk Hill Street house and had been living there in the larger of the two apartments for a number of years before his death. The respondent occupied the smaller apartment at a rental of $25 a month. The
Except for such inferences as can be drawn from these facts we have no knowledge of the actual value of the property or what the testator believed its value to be or what he believed the rental value to be of the apartment which he himself occupied. The will was made before the oncoming depression had disclosed its full force, but the testator allowed it to stand after the depression had become severe. Even if we make the somewhat difficult assumption that the property was under assessed and take it as worth its inventory value, it is hard to believe that the testator could
It is plain that the testator intended to secure the payment out of this real estate of the unpaid notes of $1,100 each to three of his daughters. Even if he was optimistic about his property, he could hardly have failed to realize that there was some risk that the net profit might be insufficient. It seems unlikely that he would have allowed payment of the notes to the daughters to be jeopardized through inadequacy of net profits, while at the same time the respondent as devisee held title to the property. On the other hand, if "rents and proceeds” are to be taken as gross there would almost certainly be enough to pay the daughters’ notes, and even if the respondent had to contribute to the carrying charges while the notes were being paid he would ultimately own the property in which he had been living and in that manner might receive both reimbursement for his expenditure and the equivalent of payment of his note. The device of payment out of the rents and proceeds may have been hit upon in order to indicate a definite source out of which the notes should be paid and at the same time to defer the payments so that they would not be unduly burdensome to the respondent. Compare Smith v. Fellows, 131 Mass. 20. If the testator had intended to limit the payments to net profits he could easily have said something to that effect.
On the whole we incline to the view that in this will the words "rents and proceeds” refer to gross income from the property and not to net profits. The decree should be modified, however, so as to make plain that the respondent
Decree as modified affirmed.