151 Mass. 324 | Mass. | 1890
In August, 1877, Caleb Wood died childless, leaving a widow, Caroline A. Wood, and a will wherein he devised the residue of his estate‘to a trustee, in trust, to invest the same and pay over to her such sums or parts thereof as she might from time to time desire, and upon her decease to dispose of the trust fund then remaining as she might by her will direct; and in case she should fail to make a will, then to pay at her decease one half of said trust fund to his heirs at law then surviving, they taking by right of representation, and one half to the heirs at law of his wife, then surviving, they taking by right of representation.
His heirs at law at the time of his death (besides his widow, who was a statutory heir) were as follows: 1. A brother, Charles. 2. Four children of a deceased brother, Eliphalet. 3. Three children of a deceased brother, Lyman. 4. A sister, Abigail W. Smith.
As some of the heirs at law of the testator had been thinking of contesting the probate of the will, his widow, on the 24th of September, 1877, entered into an agreement under seal with the heirs, wherein she covenanted that within two months from the probate of the will she would pay over to the said Abigail W.
The will was accordingly proved and allowed, and the five thousand dollars duly paid to Mrs. Smith.
It is conceded that this agreement, by its terms, did not have the effect to prevent Mrs. Wood from calling upon the trustee to pay to her the whole of the trust property in her lifetime, and that, if the property had been thus paid over to her in pursuance of such a request, it would have become her own, and she might have disposed of it as she pleased. The agreement merely precluded her from making a testamentary disposition of the trust fund.
On the 10th of April, 1879, Charles Wood, the testator’s brother, entered into an agreement under seal with the testator’s widow, reciting the above mentioned agreement, and that she was dissatisfied therewith and claimed it to be illegal, wherefore, in consideration of seven thousand dollars paid to him by her, “he does hereby cancel, annul, and forever discharge and release said contract, and he covenants and agrees with her and her heirs and executors to protect her from said contract, and that no claim against her or her estate shall be made under the same by any person, and that no objection shall be made on account of said contract to any will she has made or may make. And he further covenants that he will procure from the heirs of Caleb Wood named in said contract a release to said Caroline of said contract and all rights under the same.” The former agreement was accordingly surrendered to her by Charles- Wood, in whose possession it seems to have been, and was cancelled.
On the 6th of December, 1886, Mrs. Wood died, leaving a will, wherein she disposed of all of the property in the hands of the trustee, which then amounted to about two hundred and
The four children of Eliphalet, the three children of Lyman, and the two children of Mrs. Smith, (these all being also the heirs at law of Charles Wood,) now bring this bill in equity seeking to enforce the agreement of Mrs. Wood that she would not make any testamentary disposition of the trust fund created under her husband’s will. The defences are the release and agreement given by Charles Wood, the formal releases given by three of Eliphalet’s children, the acceptance by others of the plaintiffs of the money paid by Mrs. Wood for the release and agreement by Charles, under circumstances constituting an estoppel or an accord and satisfaction, and the death of Mrs. Smith before that of Mrs. Wood, which it is contended had the effect to cut off any claim on the part of her two children. The plaintiff’s replication alleges that the release of Charles Wood was given when he was of unsound mind; and this question was submitted to a jury, who disagreed.
As to the three children of Eliphalet who signed formal releases to Mrs. Wood, it is conceded that no claim can now be maintained in their behalf, and that they are to be treated as out of the case.
As to the fourth child of Eliphalet, Mrs. Minor, and the three children of Lyman Wood, their claim is cut off by their acceptance of one thousand dollars each as an accord and satisfaction. It is conceded that each one of them received from the administrators of the estate of Charles Wood a sum sufficient, when taken with certain payments made to Lyman’s three children by Charles Wood himself in his lifetime, to make up one thousand dollars with interest from the time when Mrs. Wood paid the seven thousand dollars to Charles Wood. The testimony and circumstances show clearly that they received these sums, not as gifts from Mrs. Wood, but on a consideration connected with the compromise agreement which she had given with reference to the allowance of her husband’s will. She had already paid
It remains to be considered whether the bill can be maintained in behalf of the two children of Mrs. Smith; one of whom is Mrs. Moor, who is also one of the administrators of the estate of Charles Wood, and the other is Charles W. Smith.
In respect to Mrs. 'Moor, it is contended that her claim is cut
It is not easy to see in what way her individual claim under Mrs. Wood’s agreement is affected by her acts as administratrix of Charles Wood. Let it be assumed that her ratification as administratrix of the release and covenants of Charles Wood to Mrs. Wood was full and valid, both in fact and in law ; the effect of this is only to give to that instrument the same force which it would have had if its validity had never been questioned. It makes .the instrument valid and effectual as an instrument signed and sealed by Charles Wood; but it does not affect the rights of Mrs. Moor as an individual, except so far as she might claim under Charles Wood. In executing that instrument, Charles Wood did not act nor assume to act as the agent of Mrs. Smith, the mother of Mrs. Moor; but in consideration of seven thousand dollars paid to him, he covenanted with Mrs. Wood that he would procure from the heirs of Caleb Wood a release to her of her contract. If that instrument was valid at the time of its execution, or if it was made valid by being ratified afterwards, it did not cut off the claim of any heir of Caleb Wood under Mrs. Wood’s agreement, except of Charles Wood himself, unless something further should be done by which their rights would be affected. As to the three children of Eliphalet, something further was done, and they executed a formal release, by which their claim is cut off. As to the fourth child of Eliphalet and the three children of Lyman, something further was done,
■When Charles Wood took Mrs. Wood’s money and executed his release and agreement, and surrendered her own agreement to her, Mrs. Wood may have jumped to the conclusion that everything had been done that needed to be done in order to enable her to dispose of the trust property without a violation of her agreement. But we find nothing to show that she was misled into this conclusion by any act of Mrs. Moor which was
It is further contended in behalf of the defendants, that neither Mrs. Moor nor Charles W. Smith can maintain their claim under Mrs. Wood’s agreement, because, if the agreement of Charles Wood to procure releases from all of Caleb Wood’s heirs was ratified, then the administrators of Charles would be bound to make that agreement good; and since his estate has been mostly distributed, his heirs at law, including those plaintiffs who have received the same, would also in like manner be bound, and that therefore, if these plaintiffs prevail in this suit against the estate of Mrs. Wood, they will become liable to that estate in another suit, and therefore, to prevent circuity of action, this suit should be dismissed. This objection, however, cannot prevail, for two reasons. In the first place, if the executor of Mrs. Wood should have any claim by reason of being held responsible upon Mrs. Wood’s agreement, it would be primarily against the estate of Charles Wood, as represented by the administrators j or if that should prove insufficient by reason of their having distributed it in great part, then the claim, if any is enforceable, would not be limited to Mrs. Moor and Charles W. Smith, but would be against all of the distributees. In either case, the liability, indirect or direct, of Mrs. Moor and Charles W. Smith would not be coextensive with their claims against the estate of Mrs. Wood, and at the most their claims should be defeated only to the extent of their subsequent liability to that estate. In
Finally, it is contended by the defendant that the death of Mrs. Smith, after the death of Caleb Wood, the testator, and before the death of Mrs. Wood, has the effect to exclude her children from any benbfit under the provision of Caleb Wood’s will. That provision is, that if Mrs. Wood should fail to make a will, then at her decease the trustee should pay one half of said trust fund to the testator’s heirs at law then surviving, they taking by right of representation. The argument is, that at the testator’s decease Mrs. Smith was an heir at law, and her children were not; that his heirs at law must be ascertained at the time of his death ; and that she, being an heir at law at the time of his death, lost the right which she would otherwise have had by reason of not surviving until Mrs. Wood’s death. This question has not been discussed by the plaintiffs.
There are very many cases where testamentary language bearing some resemblance to that used by the testator has been construed ; but singularly enough, after some little examination, no case has been found by us where a remainder over was limited to the testator’s heirs at law then surviving. Where there is a limitation over to a class designated as the testator’s heirs at law, or his next of kin, it is usual to hold that this class should be ascertained at the time of the testator’s death, unless there is something to be found in the will showing a contrary intention ; and this for two principal reasons, namely, that the law leans rather to vested remainders, and that ordinarily in such cases it appears that, after making the special and earlier provisions
In the present case, we have come to the conclusion that the limitation over to the testator's heirs at law then surviving must mean to those persons then surviving who at that time would be his heirs at law ; that is to say, that his heirs at law must be ascertained at the time of his wife’s death, as if he had lived till then. The reasons in favor of this conclusion are as follows.
The gift was only to heirs at law then surviving. There was no gift to any heir at law except to heirs at law surviving at the time fixed. It was necessarily wholly uncertain who would fall within that class. It was indeed possible that all of those persons who were heirs at law at the testator’s death might die before the time would come for this gift to take effect. The remainder was contingent. It was not like a gift over to several persons named or clearly defined, with a provision that if one or more should die the survivors should take. In such case it has been considered that the remainder is vested, but determinable upon the happening of a contingency. Blanchard v. Blanchard, 1 Allen, 223. Gillens v. Gillens, 140 Mass. 102, 105. In the present case, the language excludes everybody not living at the time of Mrs. Wood’s death, and the interest devised was necessarily only a contingent remainder. Colby v. Duncan, 139 Mass. 398. Moreover, it cannot be said in the present case, that, if the testator’s wife were to die without leaving a will, he was content to let the law take its course with the trust fund, because he expressed a wish antagonistic to such a result, and gave his property, not to his heirs at law at the time of his death, but to his heirs at law surviving at the death of his wife. He was not willing that it should at that stage go as intestate property, but undertook to control the devolution of it. The two main
The case of Dove v. Torr, 128 Mass, 38, seems at first sight to go somewhat in a different direction from that above expressed. In that case the words were, after the time fixed, “ the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs.” The court held that they meant that at that stage the law should take its course,
In Whall v. Converse, 146 Mass. 345, there was nothing to take the case out of the general rule, that ordinarily a devise of a remainder to heirs shows an intent at that stage to let the property go according to law. And there is no occasion to do more than merely mention a few other similar cases in this State. Minot v. Harris, 132 Mass. 528. Abbott v. Bradstreet, 3 Allen, 587. Minot v. Tappan, 122 Mass. 535. Childs v. Russell, 11 Met. 16.
The following cases tend more or less to support the conclusion we have reached upon the construction of the will. Fargo v. Miller, 150 Mass. 225. Knowlton v. Sanderson, 141 Mass. 323. Sears v. Russell, 8 Gray, 86, 94-97. Wharton v. Barker, 4 Kay & Johns. 483, which is often cited, and nowhere questioned. Sturge v. Great Western Railway, 19 Ch. D. 444. Clowes v. Hilliard, 4 Ch. D. 413. Long v. Blackall, 3 Ves. 486. Pinder v. Pinder, 28 Beav. 44. In re Morley's trust, 25 W. R. 825. Travis v. Taylor, 12 Jur. (N. S.) 791. Bessant v. Noble, 2 Jur. (N. S.) 461. Doe v. Frost, 3 B. & Ald. 546. Briden v. Hewlett, 2 Myl. & K. 90. Butler v. Bushnell, 3 Myl. & K. 232. Clapton v. Bulmer, 5 Myl. & Cr. 108.
The result is, that the bill should be dismissed as to all of the plaintiffs except Mrs. Moor and Charles W. Smith, and that these two plaintiffs are entitled to a decree in their favor. It is stated in the report upon which the case was submitted to us, that no technical question of pleading is raised, and that any necessary amendment may be allowed. The case has therefore been determined upon the substantial question argued before us, whether the plaintiffs are entitled to any relief.
Ordered accordingly.