White v. Massachusetts Institute of Technology, 171 Mass. 84

White v. Massachusetts Institute of Technology

171 Mass. 84 | Mass. | 1898

Holmes, J.

This is a bill for instructions brought by the executor of the will of Ann White Dickinson. The questions all concern the construction' of a second codicil, entitled. “ Memorandum” which seems to have been drawn without the help of a lawyer, and which raises difficulties of the kind to be expected under such circumstances.

The second codicil begins by declaring that the testatrix gives “ the remainder of articles, not previously disposed of, and declare that it is my will, or whoever may execute the same, shall deliver the articles of money, furniture, paintings, wearing ap*95parel, personal articles, plate, carriages, horses, harnesses, and all other articles of a like nature hereinafter mentioned, to the respective persons as donors thereof as presents from me.” By the third clause of her will she had given “ all my personal effects,” enumerated somewhat as above, to her executors, to be given by them to her friends. The first question is whether the second codicil revokes this clause, — or, putting it conversely, whether the second codicil defeats itself at once by the words “ not previously disposed of,” because the articles as to which it makes elaborate provisions are previously disposed of by the will, and therefore by the terms of the codicil above quoted are excluded from its operation. We are of opinion that the words “ not previously disposed of ” in the codicil do not refer to a previous disposal by the will. It was the purpose of the codicil to replace the will so far as it went. The words probably refer to a disposition executed by the testatrix in her lifetime. In this sense it is said in article 48 of the same instrument, “ Having disposed of many articles treasured in life, and in the event of not disposing of the few others.” So in article 1 she gives a small box “ if not previously disposed of,” and in article 2 orders the photographs of her father, mother, and husband to be destroyed “ if not previously disposed of.”' This last provision most obviously could not refer to a previous disposition by will. The third section of the will is revoked by the second codicil. Our answer to this question also answers the similar question numbered 3, as to the revocation of the sixth or residuary clause of the will by the second codicil, that numbered 4 as to the revocation pro tanto of the second clause of the 'first codicil, and that numbered 5 as to whether there is any “remainder of articles not previously disposed of” left to be distributed by the second codicil.

In answer to the sixth question we are of opinion that the word “ donors ” is used by mistake for “ donees.”

The father of the testatrix left eighty thousand dollars to be deposited in the Hospital Life Insurance Company, in trust to pay the income to the testatrix for life, and gave her a power of disposition over the corpus of the fund by will. The testatrix, after directing by the fourth clause of her will that, if her own residue was not sufficient, this fund should be used to make good *96any deficiencies in her mother’s charitable legacies, by the fifth clause appointed the fund, subject to the foregoing, to the Massachusetts Institute of Technology and the Boston Museum of Fine Arts. There are no deficiencies to be made good under the fourth clause, and the whole fund is well appointed to the two corporations named. This appointment is not modified by the codicils. Indeed, the second is stated not to be intended to dispose of any property over which the testatrix has a power of appointment. The second question put is whether, if the estate of the testatrix is insufficient to pay the legacies given in the second codicil, the fund in question is to abate proportionately. We are of opinion that there should be no such abatement by reason either of any expressed intention or of Pub. Sts. c. 127, §§ 28, 29. The fund is not the property of the testatrix, and should not be applied to her debts until her own property is exhausted. Fleming v. Buchanan, 3 DeG., M. & G. 976. It is asked also what interest shall be paid to the legatees. We presume that the terms of the original will were followed, and that the fund' was identified by deposit in the Hospital Life office. Whether it still is there or what has become of it does not appear. If any interest has accrued since the death of the testatrix, it should follow the fund. No reason appears for allowing more than the actual increase of the fund.

The third article of the second codicil gives five thousand dollars to Abby W. Hale, and at her decease to her two unmarried daughters,—“then to the survivor of them, and then to two married daughters. Abby W. Hale has died since the death of the testatrix. The seventh question is whether the fund is to be held by the executor in trust until the death of the two unmarried daughters, or is to be paid over to them. It is settled in this Commonwealth that, in the case of money, if no trustee is specially named or appointed, the executor is to hold the money in trust, and pay the interest only to the person entitled for life. Field v. Hitchcock, 17 Pick. 182, 183. Homer v. Shelton, 2 Met. 194, 206. Hooper v. Bradbury, 133 Mass. 303, 307. Bullard v. Chandler, 149 Mass. 532, 537. Our answer to this question also answers the thirteenth, with regard to the five thousand dollars given to Mrs. Joshua Lincoln for life by the twenty-second article, and the seventeenth, with regard to'the like sum given by the thirty-fifth article to Charles H. Hall for life.

*97The eighth question concerns “the old Vose mahogany table” and the “ chromo of Lilacs,” mentioned in article 3 of the codicil. The gift is absolute in terms to Abby W. Hale, “ if living at" my decease,” and the gift to her daughter Mary and other daughters successively is only in ease Abby is not living at the death of the testatrix. But in article 4 there is a gift over after the decease of Abby and her four daughters, and taking this into account, and other indications in article 5, we are of opinion that Abby took only a life interest, and are inclined to assume that her daughters were to take successive life interests at her death, whenever it happened. The table and chromolithograph will be handed to the daughter Mary, that being the rule as to chattels of this sort. Homer v. Shelton, 2 Met. 194, 206. The Yose clock, by the terms of article fifth, goes the same way as the table. But we do not see our way to cutting down the gift of the articles mentioned in article 6 to a life interest. The gift to Abby is absolute in terms, and there is no alternative except in case Abby is not living at the death of the testatrix. The reference to article 3 suggests a similar disposition throughout, but there is no limitation over or other indication of an intent to look, beyond Abby’s death if the things once vested in her. The objects inquired about in the tenth question should be given to the representatives of Abby W. Hale.

The cologne stand mentioned in the eighth article is to be delivered to Harriet W. Kennedy, as are also the objects mentioned in the ninth article.

The two sums of five thousand dollars mentioned in the twenty-third and twenty-fourth articles are to be held in trust, as in the cases already explained. Questions as to the future disposition of the fund we do not answer. Bullard v. Chandler, 149 Mass. 532. Quincy v. Attorney General, 160 Mass. 431, 437.

The sixteenth question, as to the gift of a hundred dollars a year by article 31, “ should there be one or more persons at my decease but now not known in my employ who may have faithfully served me at home,” is answered by the finding that the only persons answering the description are Martha L. Collins and Sarah Ellen O’Brien. The sum will be paid to each of them.

The last two questions concern the la.st gift in the codicil: *98“ To each of my cousins in the first degree who is not remembered by a legacy from me in my will and codicils — to each of such cousins, I give the sum of twenty-five hundred dollars.” We are of opinion that these words do not describe first cousins already deceased when the words were used, or the issue of such cousins, and therefore that such issue cannot take, whether the testatrix knew of the death of their ancestor or not. As thei-e is no devise to their ancestor, they are not helped by Pub. Sts. c. 127, § 23. In cases like Nutter v. Vickery, 64 Maine, 490, although the ancestor was dead when the will was made, the will purported to make him or her a devisee. Howland v. Slade, 155 Mass. 415. Sanderson v. Bayley, 4 M. & C. 56. Christopherson v. Naylor, 1 Mer. 320, 326. Parker v. Tootal, 11 H. L. Cas. 143, 164, 166. In re Musther, 43 Ch. D. 569.

There is more difficulty in deciding whether those cousins who received a chromolithograph or a hat-stand were “ remembered by a legacy ” within the meaning of the codicil. There is such a want of proportion between the gifts of various small articles and the money, there is such an improbability that a first cousin, so far singled out as to receive a keepsake, should be excluded by the receipt of it from a benefit given to the least known of the class, that we are compelled to believe that legacy here is used in the sense of a pecuniary legacy, the meaning which the word most readily suggests to the unprofessional mind. It is argued with some plausibility that the testatrix used the word “ bequests ” in the same sense of pecuniary bequests in her will. She says, “ I make no bequests to my relations because,” etc., yet she gives all her personal effects other than money to her executors to be given to her friends, certainly including her relations.

Decree accordingly.