203 Mass. 94 | Mass. | 1909
The testator, after making certain provisions for his wife and stepson and for the payment of debts, directed, in the fourth clause of his will, that the residue of his estate should be divided between his wife and his three children by a former marriage, “ to share equally and alike.” But in the fifth clause, as to the share coming to his son Henry B. Dresser, he further declares, that, “ At this date and time of making this instrument there stands on my books, an account against my son Henry B. Dresser January 1st 1882 amounting to thirteen thousand nine nundred and fifty-nine and 14/100 dollars $13,959.14, which debt has been created by my endorsing of the paper of the firm of Randall Daffin & Co. of which firm my son Henry B. Dresser was a member and at whose request and for his benefit the endorsements were made and the firm having failed to pay their notes I was compelled to do so. And my son' Henry B. acknowledges that the principal and interest is rightly due from him; therefore I request that in making an inventory of my estate my executors include the amt above written, $13,959.14, with annual interest at the rate of 6 pr cent. pr annum, and that in paying out the legacies, the amount
If a conveyance of the son’s incumbered homestead had been made to him for an ostensible consideration which he deducted from the firm’s indebtedness, and then accepted a percentage in composition on the balance, the evidence leaves no doubt, that in taking title, which he later conveyed without consideration to his son’s wife, the testator acted not only at the son’s request, but for the apparent purpose of securing to him and his family the equity in the property. In fact, whatever the effect of these transactions may have been on their purely contractual relations, the only payment the testator ever received was the dividend which he duly credited on the account. At his death, with this exception, the principal of the account remained the same as at the date of the will. The testator throughout article fifth speaks of “ an account against my son Henry,” the amount of which is to be deducted, and, although he says, “which debt has been created ...” when referring to the origin of the expenditure, it is immaterial whether the pecuniary aid furnished is treated as a debt not to be collected from the debtor, or as in the nature of an advancement to be taken out of the share of the legatee, for it was not the collection or payment
In the will, which speaks only from his death, the indebtedness is stated at a fixed sum to be inventoried as a part of the estate, and then the amount found on the account is to be deducted from Henry’s portion. The subsequent declarations of the testator, whether oral or written, as to the meaning to be given to the language employed, or his object in making this testamentary disposition, were inadmissible to contradict or vary its terms. Foster v. Smith, 156 Mass. 379. Polsey v. Newton, 199 Mass. 450,455. The testator’s purpose having been declared, and the amount designated, if nothing further appeared, the court could at once proceed to a decree for which the requisite data had been fully supplied. If, however, the charges as shown by the books of account, which by reference are made the source of information, not only for the executors, but for the legatees, were disputed as partially incorrect or wholly erroneous, resort could be had to oral evidence to show such inaccuracies, for the purpose of ascertaining the exact sum outstanding at his death. Hoak v. Hoak, 5 Watts, 80. The will was dated on January 21,1882, and the testator died on August 15, 1899. The account on the first date showed a balance as stated in the fifth clause, but during the interval the proceedings in insolvency, to which sufficient reference has been made, intervened. A credit of the dividend was then posted, and the final balance charged off to expense account, which in bookkeeping appears from the evidence to be analogous to a profit and loss account. It is earnestly contended, that by this entry the testator intended to cancel or obliterate “ the amount found on the account against Henry B. Dresser.” But even then, if the fifth clause is read as containing the words “if not repaid or discharged at my death,” this entry does not cut down the testator’s primary meaning and
The will further directs, that for appraisal and distribution “ annual interest ” at a specified rate is to be computed. It is true, as the appellants urge, that interest is not chargeable on advancements, and if the relation is viewed as purely contractual, the debt has been legally discharged. But notwithstanding these arguments which are sound where applicable, they must give way to the universal rule, that the intention of the testator governs. Bacon v. Grassett, 13 Allen, 334, 337. Taylor v. Taylor, 145 Mass. 239, 241. It may be assumed he
Although what has been said disposes of the more important questions, Ida Maxwell, executrix and residuary legatee of Franklin D. Dresser, appeals from so much of the decree as gives directions, if the distributions are not found to have been assented to, for the return to the plaintiff, who is administrator with the v/ill annexed, of certain shares of stocks forming part of the estate, previously distributed, and for an accounting of dividends subsequently received, and interest on the advancements. In the second paragraph of the sixth clause of the will the testator says : “ But nothing herein contained shall be construed to prevent the said legatees from dividing among themselves any part ■ or all of my residuary estate in case they all agree upon such division and distribution without sale thereof.” It appears that, even if a partial division of the residue, including nearly all of the shares of corporate stock at the inventoried valuation, between the legatees has been attempted, the portions of the accounts of the executrix containing the advancements have not been allowed. The present suit, although begun in the
The decree, when modified in the details to which we have adverted, is affirmed.
So ordered.
This letter was dated June 22, 1888. The passage referred to was as follows: “ I presume you may not be aware of the fact that of my available means, the amount of principle and interest for the past ten years which I have paid for Henry’s interest is more than $20,000 and if the others of my family had reed, an equal amt. quite a fortune would have been absorbed. The amt. of indebtedness created at the period in question has not been liquidated but the indebtedness against Henry has been settled on my books so that it will not appear against him in my estate should he outlive me.”
This refers to declarations made by the testator to his counsel Mr. Cochran in 1895 relating to a draft of a new will.