Howland v. Corson

89 N.E. 225, 203 Mass. 139, 1909 Mass. LEXIS 916

• Court: Massachusetts Supreme Judicial Court
• Decided: September 9, 1909
• Status: Published

Opinion

Hammond, J.

In Howland v. Parker, 200 Mass. 204, it was adjudged that by her will the plaintiff’s testatrix made a valid execution of her power under the trust deed. It was said that in that action it was unnecessary to decide whether this execution was found in the seventh or eighth clause, since, if found in either the plaintiff in that action had made out a case; and it was further said that “ The question whether the trust fund passed under the seventh or eighth clause . . . should be decided in a suit in which the legatees named in those two clauses are parties,” and the court declined at that time to express an opinion upon that question. This present suit calls for an adjudication upon the question thus left open in the preceding case.

It becomes necessary to look into the whole will and the circumstances under which it was made. The case is before us upon certain agreed facts and evidence (so far as material), with the right in the court to draw all proper inferences of facts. The facts agreed and the proper inferences show that the circumstances were substantially as follows:

The testatrix, Mary E. Howland, and her husband had not lived harmoniously together, and on or about February 25,1905, “ she voluntarily left his bed and board with the declared intention never to return thereto, although requested by him to do so,” and on April 4,1905, she still living apart from her husband, the trust deed was duly executed. Ten days afterwards she exeóuted the will in question, and on March 25, 1907, she died. At the time she left her husband she had no money, securities or deposits, nor did she have any at the time of the execution of her will except $450 on deposit in a savings bank, which sum was part of the $500 paid to her under the second clause of the trust agreement at its date. She does not seem to have had any issue living at the time the will was made. Nor is it shown that at that time she had any near relative except her sister Jessie E. Corson named in the will. It does not appear that she had resumed marital relations with her husband. It fairly may be inferred that she had some real estate, but the value of it does not appear.

Thus comparatively alone in the world and apparently not possessing much property except her interest under the trust agreement, she proceeds within ten days after the date of the agreement to make her will. • She directs that the expenses of her funeral, cremation and burial shall be paid from her estate. In the second clause she gives to her sister Jessie as specific legacies “ the various articles which I have received from her as gifts and which shall be possessed by me at my decease,” and by the third clause, her right in a burial lot. In the fourth clause she gives to her friend Helen D. Howland, as specific legacies, “ the various articles which I have received from her as gifts and which shall be possessed by me at my decease.” In the fifth clause she gives to her cousin Susan A. Gilbert, “as specific legacies, such articles of personal property belonging to me, not including money or articles of jewelry which may be upon the premises wherein she lives at my decease, and also my wearing apparel but not including articles of jewelry, wherever such apparel may be at my decease.” In the sixth item she gives to her friend Lucy G. Booth as specific legacies, “ the various articles which I have received from her as gifts,” and also one of the two diamond rings of the testatrix.

Up to this time she has provided for the payment of her just debts, funeral and burial expenses, and for the delivery to her friends of certain articles specifically named. Her mind comes now to the consideration of what shall be done with the rest of her estate. While the disposition is contained in clauses separately numbered as the seventh and eighth, we are of opinion that the residuary character is applicable to both, and that in substance and legal effect they form together the real residuary clause intended by the testator. She had finished the enumeration of specific articles. There was something more to be disposed of, consisting of the money in the bank and the money securities in the trust fund over which she had the power of appointment on the one hand and such articles of personal property as had not been specifically bequeathed or designated to be held in trust, together with some real estate, on the other. She proceeds to divide the residue into two parts, one of which, namely, the “ money securities and deposits,” she puts in trust for the life of her cousin Susan, with remainder to her sister Jessie, and the other part, namely, the articles of personal property, with her real estate, she gives to her sister Jessie. The phrase “articles of personal property,” found in the eighth clause, is very inappropriate to designate the money in the bank and the trust fund, while the phrase “the remainder of the money securities or deposits,” found in the seventh clause, describes the money in the bank and the trust property with substantial precision. In each clause the personal property therein bequeathed is described as belonging to the testator’s estate. It already has been decided by this court that it sufficiently appears that the language of the will, considered in the light of the circumstances under which it was made, indicates the clear intention of the testatrix to execute her power under the trust deed. Upon further consideration of the case we think, as before stated, that both clauses are part of one and the same residuary clause, and that, as thus construed, the residuary characteristic is as applicable to the particular kind of property named in the seventh as to that named in the eighth clause;- and that in each appears the intent of the testatrix to exercise the power given to her under the trust deed so far as- material to the kind of property therein described. It follows that- by the will the net income of the fund created by the trust agreement was to be paid to her cousin Susan A. Gilbert for her own personal use and free from all interference of her husband.

It appears that Susan’s interest in the fund has been assigned to Barker C. Howland, who was the husband of the testatrix; and we do not understand that the validity of that assignment is contested. It follows that the plaintiff as executrix and trustee is to hold the fund in trust to pay the net income to Barker C. Howland, during the life- of Susan A. Gilbert, and upon the death of Susan to pay over the fund to the sister, Jessie E. Corson, her heirs, or assigns,

Decree accordingly.