Bates v. Barry

125 Mass. 83, 1878 Mass. LEXIS 22

• Court: Massachusetts Supreme Judicial Court
• Decided: July 19, 1878
• Status: Published

Opinion

Soule, J.

The clause in the will, “I order that $500 per year for ten years be paid over to my niece, Ann G. Bates,” gave her an annuity, and not a legacy of $5000, payable in instalments. Brimlecom v. Haven, 12 Cush. 511. Stephens v. Milnor, 9 C. E. Green, 358. It was, therefore, by the terms of the will, payable quarterly, and subject to abatement if the income proved insufficient to pay all the annuities in full. The plaintiff consequently has made no case for recovery of any arrearages of the annuity payable on or before October 1, 1876.

As there are no words of inheritance or succession in the bequest, it must be construed as giving an annuity for ten years, if the annuitant should survive the testator so long; and if she should not, for her life only. Blewitt v. Roberts, Cr. & Ph. 274. Yates v. Maddan, 3 Macn. & Gord. 532. Savery v. Dyer, Ambl. 139. The annuity, being payable from the income of the estate, is within the provisions of the Gen. Sts. c. 97, § 24, and the plaintiff is entitled to recover a proportional part, for the time between the 1st day of October, 1876, and the 28th day of November of the same year, both inclusive. As the income appears to have been so reduced that the annuity was cut down one half, the apportionment is to be made on the quarterly sum of $02.50. The judgment of the Superior Court was evidently made up in accordance with the rules of law applicable to the case, and must be Affirmed.