317 Mass. 126 | Mass. | 1944
This petition is brought against the respondent in his capacity as administrator with the will annexed of the estate of Amanda D. Lunt, late of Newbury, and also in his individual capacity, to require him to pay over to the petitioner the proceeds of the sale of sixty-two shares of stock in Towle Manufacturing Company, which have been sold by him as assets of the estate. The petitioner claims that title to the stock was in him by virtue of a provision contained in the will of George W. Lunt, deceased husband of Amanda.
The Lunts were an elderly couple possessed of a substantial property, a large part of which consisted of savings bank deposits in their joint names. The husband died in 1938 and the wife in 1943. They had no children. The petitioner was a nephew of Mrs. Lunt. In his younger years he had lived with the Lunts much of the time and had worked on Lunt’s farm. ■ His relations both with his aunt and with his
It is a well settled rule “that if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will, or in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent the full effect and operation of every part of the will.” Hyde v. Baldwin, 17 Pick. 303, 308. “The main principle was never disputed, that there is an obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit; and if it be found that that instrument purports to deal with something which it was beyond
The will of George W. Lunt, after a provision for the payment of debts and funeral expenses and a legacy to Amanda D. Lunt of all his household furniture and furnishings and wearing apparel, continued as follows: “3. All the rest, residue and remainder of my estate, real and personal, and wheresoever situate, I give, devise and bequeath to my said wife, Amanda D. Lunt, in lieu of dower or widow’s allowance, with power to use the net income during her life, and such part or parts of the principal from time to time, as she, in her judgment, deems necessary for her comfort, support and maintenance, her judgment of the necessity for such use to be final and controlling, and I direct her to kéep the same separate and distinct from her own estate, and whatever may be left unexpended at her death, after the payment of the expenses of her last illness and burial, I give, devise and bequeath as follows: —” Then comes a specific devise of certain real estate to the present petitioner and thereafter the legacy of the Towle stock to the petitioner in these words, “To said Randolph L. Thurlow my shares of stock in the Towle Manufacturing Company of said Newburyport.” This in turn is followed by another legacy to another nephew of Mrs. Lunt in these words, “To Ralph L. Thurlow of said Newbury-port, my shares of stock in the First and Ocean National Bank of said Newburyport.” Then come a small legacy and a gift of the ultimate remainder to the testator’s sister.
Not only did the testator make his specific bequest over
There is nothing in the evidence to overcome the natural effect of Mrs. hunt’s conduct as an election to accept the benefits .under the ’ will rather than to assert full title to the stock. The evidence shows plainly that she was familiar with the provisions of the will, knew that the Towle stock referred to in the will was that now in issue, and knew that the stock was held jointly. Perhaps she did not know that the law required an election, but neither she, nor her administrator before or since this petition was brought, has offered to return any of the benefits received under the will. The election to take under the will must now be regarded as a finality, and it is too late for her estate to claim title to the stock instead. Watson v. Watson, 128 Mass. 152, 157. Noyes v. Noyes, 234 Mass. 397, 402. The rule already discussed forbids that Mrs. Lunt or her estate should have the benefit both of the will and of full title to the stock.
The decree must be reversed, and a decree must be entered granting to the petitioner the relief prayed for.
So ordered.
Other decisions in this Commonwealth illustrating this principle are Ward v. Ward, 15 Pick. 511, 526, Fitts v. Cook, 5 Cush. 596, Smith v. Smith, 14 Gray, 532, Watson v. Watson, 128 Mass. 152, Smith v. Wells, 134 Mass. 11, Tyler v. Wheeler, 160 Mass. 206, 209, Noyes v. Noyes, 224 Mass. 125, 133, Noyes v. Noyes, 234 Mass. 397, 402, Rudd v. Searles, 262 Mass. 490, 492, and Knapp v. Meehan, 287 Mass. 573, 576.