178 Mass. 511 | Mass. | 1901
1. The questions which first arise in this case are the amount payable to the executors of the will of Mrs. Gilson, under the first clause of the will, how this is to be paid, and whether it is a charge upon the real estate mentioned in the ninth clause of the will.
It is clear that under the first clause the executors of Mrs. Gilson’s estate are entitled to receive the interest of $2,000, at four per cent, from the death of the testator, April 28, 1898, down to the death of Mrs. Gilson on August 9, 1898. The intention of the testator was to create an annuity of $80 a year, and the executors of the will of his wife are entitled to a proportionate part so long as she lived. Pub. Sts. c. 136, §§ 24, 25. These provisions were first enacted in 1848, and have been in force since. St. 1848, c. 310. Gen. Sts. c. 97, §§ 23, 24. See also Towle v. Swasey, 106 Mass. 100; Adams v. Adams, 139 Mass. 449; White v. Stanfield, 146 Mass. 424.
The question whether the sum due the executors of Mrs. Gil-son’s will is a charge upon the land conveyed by the ninth clause of the will may be more conveniently considered in connection with the next clause of the will.
2. Under the second clause of the will, we are of opinion that Lillian Drake is entitled to an annuity of $100 a year during her life; (Swett v. Boston, 18 Pick. 123; Brimblecom v. Haven, 12 Cush. 511;) and, in addition, that the sum of $1,000 is to be paid to her from time to time as her necessities may require. The annuity runs from the death' of the testator, and may be paid in quarterly or semiannual instalments.
The sum of $1,000, as will appear later, is to be held in trust, and this sum and the accumulated interest are to be paid to Mrs. Drake as her necessities may demand. Being in trust, we are of opinion that the plaintiff is the judge of these necessities, subject to the rule that her discretion is to be exercised fairly.
The question whether the amount to be paid to the executors
The ninth clause devises to the plaintiff “ my home place and my meadow lot bought of Jane Pollard after paying the legacy given in article second of this will to my daughter Lillian Drake and also the interest to be paid to my wife mentioned in article first in this will.”
Clauses three to eight give certain specific bequests and devises to his sons and daughters. The tenth clause gives the rest and residue of his real and personal estate, to be equally divided between one of his sons and the plaintiff.
We are of opinion that the gift to the testator’s wife in the first clause of the will, and the bequest in the second clause are made by the ninth clause of the will a charge upon the home place and meadow lot therein devised to the plaintiff. She is to take these parcels of land “after paying” these legacies. Taft v. Morse, 4 Met. 523. Henry v. Barrett, 6 Allen, 500. Fearing v. Swift, 97 Mass. 413. Frampton v. Blume, 129 Mass. 152. Thayer v. Finnegan, 134 Mass. 62, where the cases on this subject are fully considered by Mr. Justice C. Allen. Amherst College v. Smith, 134 Mass. 543.
It is true that it is stated in the bill and admitted in the answers that the personal estate of the testator according to the inventory is $18,593.38, and the real estate $11,415, so that there are assets sufficient to pay the legacy; but we find no statement as to the value of the parcels described in the ninth clause of the will, nor of the value of the property at the time the testator made the will, more than three years before. The argument of the counsel for the plaintiff, founded upon what is said to be the value of the two parcels in the inventory, can have no effect.
Some question is raised as to whether a trustee should be appointed under the second clause of the will. The eleventh clause of the will, which nominates the plaintiff as executrix,
We do not feel called upon to determine whether the words “ said amount ” in the gift over to the children of Mrs. Drake apply to the $2,000, or only to such part of the sum of $1,000 as may remain at the death of Mrs. Drake. Perkins v. Stearns, 163 Mass. 247, 250.
3. By the third clause of the will, the testator gives to his daughter Mary E. Sears a mortgage and note on a certain farm, called the Fletcher farm, for $2,500; and by the fifth clause of the will' he gave the use and income of the Fletcher farm above the mortgage given to his daughter, to his son, John E. Gilson, for life, with remainder to his children living at his decease. This mortgage and note were executed by the testator eight years before his death. The daughter was named in the mortgage as mortgagee, and the note was payable to her. The papers remained in the custody of the justice of the peace, who drew them during the life of the testator. Sometime before the testator died he caused to be written upon the note the words “No interest to be paid until after ,my decease.” After the testator’s death the plaintiff delivered the note and mortgage to Mrs. Sears, and she had the mortgage recorded, knowing the facts that we have stated.
There is no doubt that no action can be maintained upon the note and mortgage, because they are without consideration. Parish v. Stone, 14 Pick. 198. Loring v. Sumner, 23 Pick. 98. Wilbar v. Smith, 5 Allen, 194. And also because they were not delivered during the lifetime of the testator. Fay v. Richardson, 7 Pick. 91. Hawkes v. Pike, 105 Mass. 560. Shurtleff v. Francis, 118 Mass. 154. Barnes v. Barnes, 161 Mass. 381. Meigs v. Dexter, 172 Mass. 217.
The question, however, remains whether enough can be found in the will to show that the testator intended to give to Mrs.
But where .the testator bequeaths his own note, which is invalid for want of consideration or for want of delivery, such note may be considered as a pecuniary legacy. Loring v. Sumner, 23 Pick. 98. Wilbar v. Smith, 5 Allen, 194. And such we consider its effect in this case.
Although the mortgage is of no effect, we are of opinion that the amount of this legacy is a charge upon the Fletcher farm. The intention of the testator was clearly expressed that what Mrs. Sears took should be a charge upon this farm.
It follows from what we have said that John E. Gilson takes the Fletcher farm for life, with remainder to his children living at his decease, subject to the charge of the bequest to Mrs. Sears.
Decree accordingly.
On settling the decree in this case, it was contended by counsel that the court had not considered the following requests for instructions under clause one of the will: “ What sum of money is to be paid to the plaintiff under clause one; shall the same be paid from the residuary fund, or however else shall the same be paid ?” These questions were, by the presiding justice, brought to the attention of the justices who heard the case, and the following opinion was subsequently approved by them.
When this case was last before us the questions now presented were not argued and were considered as waived. We have now considered them, and are of opinion that it follows from the decision already made that the plaintiff is not entitled to anything under clause one, except to have her estate exonerated from the charge imposed upon it by clause nine of the will in favor of the testator’s widow, when the sum of money found due the estate of the widow is paid.
Ordered accordingly.