Sibley v. Maxwell, 203 Mass. 94

203 Mass. 94 | Mass. | 1909

Braley, J.

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 found on the account against Henry B. Dresser shall be applied as a proportion of his interest in my estate.” It is the contentian of the children of Henry, who died before his father, that they are entitled to one quarter of the residue without any deduction of this amount, as the indebtedness was either discharged by a compromise with creditors at common law, or has been paid in part by the conveyance of the house and land, or was cancelled and extinguished by the testator. The money, with the exception of a trifling amount, was advanced from time to time, to aid a mercantile firm of which his son was a member, and if the transaction is viewed strictly as a loan between debtor and creditor, the composition effected by the firm, in which the testator joined, operated as an extinguishment of the indebtedness, which also would be uncollectible because outlawed at the testator’s death. But the testator did not say as in Rogers v. Daniell, 8 Allen, 343, “ that any legal debt due from either of said children to my estate at the time of my decease, shall first be deducted,” and where it was held that by the language used he meant a debt which could be enforced in a court of law.

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 of a debt, which the testator had in mind, but equality in the distribution of his property. Bacon v. Gassett, 13 Allen, 334. Cummings v. Bramhall, 120 Mass. 552. To give to Henry, or to his children by right of representation, an equal share in the residue, without regard to what had already been done for him, would permit him, or them, to obtain a larger portion than his stepmother or sister or brother, and defeat the purpose of the testator, who must be recognized as the sole judge as to the proportionate share which each child was to receive.

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 purpose, as there had been no actual repayment or acquittance. If in connection with this entry the testator’s letter to Mrs. Spaulding,^* a little over a year before his death, is treated as disclosing his understanding of the account, and not of the will, he does not state that it has been liquidated or cancelled, but the language used is fully consistent with the assurance given, that upon his decease the liability would not exist as an enforceable debt. If the letter, however, is treated as a subsequent declaration or admission, that notwithstanding the will, which at his death remained unchanged, his estate was to be distributed without regard to the fifth clause, it was inadmissible. It formed no part of the instrument, not having been referred to in the will, which having been admitted to probate had been conclusively established. Foster v. Smith, 156 Mass. 379. Jaques v. Swasey, 153 Mass. 596, 597. Lincoln v. Perry, 149 Mass. 368. Best v. Berry, 189 Mass. 510. Brown v. Wright, 194 Mass. 540. But, whatever may be said as to the meaning or purpose of the letter, there was further evidence on the question of cancellation, from which the single justice was warranted in finding that, even if the account was closed, the testator still regarded the balance as justly outstanding in the testamentary distribution of his estate.^† Cummings v. Bramhall, ubi supra. Howe v. Howe, 199 Mass. 598, 601.

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 could have advantageously invested the principal, and thus increased the value of his estate. Quite apart, however, from any reason by which he may have been actuated, the direction is explicit, and the question is, whether interest is to be compounded. At the date of the will it had been settled by our decisions, in contracts for the payment of money, that “ annual interest ” meant simple interest and nothing more. Henry v. Flagg, 13 Met. 64. Ferry v. Ferry, 2 Cush. 92. See also Hodgkins v. Price, 141 Mass. 162, 164; Lewin v. Folsom, 171 Mass. 188, 192 ; Tisbury v. Vineyard Haven Water Co. 193 Mass. 196, 198. If this were the only language used, it would not be impossible to say that the testator understood and used the phrase in this sense. Gray v. Whittemore, 192 Mass. 367. Coe v. Hill, 201 Mass. 15. But he further says, “ at the rate of six per cent per annum,” and, for at least two years, interest at this rate was compounded and charged in the account. We are compelled to construe the whole direction, when read with the extrinsic evidence, as meaning that the testator intended that the account as it stood should bear compound interest. The total amount when thus ascertained forms the sum to be inventoried, and to be set off from the share coming to Henry’s children.

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 Probate Court, is brought in equity under R. L. c. 162, § 5, for the construction of the fifth paragraph of the will, and for instructions “ as to what rate of interest, if any, shall be charged upon the payments of money and delivery of stock which shall be proven to have been made to the parties named in the second paragraph of this petition and for such further instructions as to the distribution of said estate as to the court may seem proper.” But the accounts of the executrix, who has since deceased, are not before us on an appeal for either allowance or revision, and, no question of probate accounting being involved, the plaintiff is entitled to be instructed only as to his present duties. Peabody v. Tyszkiewicz, 191 Mass. 317, 322. The record as to these items shows that the accounts are still pending before the Probate Court. If finally allowed, the plaintiff has no further concern with this part of the estate, for which he would not be accountable. If not confirmed, what further steps he should then take to charge the estate of the accountant with the amount of the inventory, and other assets received, but not properly accounted for, or to recover the property with the dividends, or its value with interest, or in his own probate account of the remaining estate to adjust whatever differences are necessary for an equal distribution, should be left until appropriate action has been taken in that court, from whose decision the questions proposed may be brought to this court by appeal. Cummings v. Cummings, 128 Mass. 532, 533. Muldoon v. Muldoon, 133 Mass. 111. Bullard v. Chandler, 149 Mass. 532, 538. Bullard v. Attorney Greneral, 153 Mass. 249, 250. It is furthermore not shown by the appeal, nor has the question been suggested by counsel, that the legatees are in controversy over the advancements, or that, if allowed, the balance of the estate remaining to be distributed will not be ample to give to Henry’s heirs their proportionate part, and until this appears to be insufficient there would be no occasion to go further.

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.