Trustees of Unitarian Society v. Tufts

| Mass. | Feb 26, 1890

Holmes, J.

We must hold the legacy in the fourth clause of the will specific, although we cannot but fear that, if the testatrix had been fully advised of the consequences of making a legacy specific, she would have changed her will.

The legacy is of “ ten shares of the stock of the Worcester and Nashua Railroad Company.” By the fifth clause of the will, the testatrix gives ten shares to another legatee, and she gives none of it to any one else. At the time of making her will, she owned twenty shares of the stock. We will assume, for the purposes of our decision, that the mere coincidence, between the amount given and the amount owned would not make the legacy specific, both being round numbers. See Tifft v. Porter, 8 N.Y. 516" court="NY" date_filed="1853-06-05" href="https://app.midpage.ai/document/tifft-v--porter-3583114?utm_source=webapp" opinion_id="3583114">8 N. Y. 516; Bronsdon v. Winter, 1 Ambl. 57; Purse v. Snaplin, 1 Atk. 414; Robinson v. Addison, 2 Beav. 515, 520. This might be admitted, perhaps, without at all questioning White v. Winchester, 6 Pick. 48. But White v. Winchester, and Metcalf v. Framingham Parish, 128 Mass. 370" court="Mass." date_filed="1880-02-26" href="https://app.midpage.ai/document/metcalf-v-first-parish-in-framingham-6419878?utm_source=webapp" opinion_id="6419878">128 Mass. 370, 373, show that such a coincidence is an important fact to be considered in connection with the language of the will. See Johnson v. Gross, 128 Mass. 433" court="Mass." date_filed="1880-03-02" href="https://app.midpage.ai/document/johnson-v-goss-6419898?utm_source=webapp" opinion_id="6419898">128 Mass. 433, 436.

Turning to the language, we find nothing conclusive in the fourth clause. The Avord “ the ” preceding “ stock ” is ambiguous, and may as well refer to the stock of the company in general as to the stock owned by the testatrix. But if “ my ” were used instead of “ the,” the legacy would be specific. Metcalf v. Framingham Parish, 128 Mass. 370" court="Mass." date_filed="1880-02-26" href="https://app.midpage.ai/document/metcalf-v-first-parish-in-framingham-6419878?utm_source=webapp" opinion_id="6419878">128 Mass. 370, 373. Foote, appellant, 22 Pick. 299, 303. See Johnson v. Gross, 128 Mass. 433" court="Mass." date_filed="1880-03-02" href="https://app.midpage.ai/document/johnson-v-goss-6419898?utm_source=webapp" opinion_id="6419898">128 Mass. 433, 435. The same principle applies, upon equally strong grounds, when a testator, after giving legacies of stock generally, gives the rest of the stock “ standing in my name.” Sleech v. Thorington, 2 Ves. Sen. 560. See Metcalf v. Framingham Parish, 128 Mass. 370, 372; Millard v. Bailey, L. R. 1 Eq. 378; Theobald on Wills, (3d ed.) 100. In this case the eighth clause of the will gives “ the balance of my sfock, as per my stock-book, my furniture, and all other property not otherwise disposed of by me.” This language, taken with the facts, makes it pretty plain that the stock disposed of by the testatrix in the fourth clause was stock then belonging to her; and the conclusion is fortified by the other clauses, which show that the general course which she adopted in making her will was to take up different items of her property as it then stood, and to dispose of them. The words used describe a specific legacy too clearly to be controlled by the fact that the proviso discloses a motive which might be conjectured to be independent of the form in which the property was invested.

The republication of the will by the codicil does not change or enlarge the meaning of the words of the will, on which the plaintiff must rely in order “to recover the legacy. It follows that the legacy was adeemed by the sale of the stock. Pattison v. Pattison, 1 Myl. & K. 12. Macdonald v. Irvine, 8 Ch. D. 101, 108. See Sidney v. Sidney, L. R. 17 Eq. 65, 68.

Judgment for the defendant.