FROM ROCKINGHAM CIRCUIT COURT.
At the August adjourned term, 1874, the supreme judicial court decided, not without hesitation, that the legacy of $5,000 to the Boston Seaman's Aid Society in the codicil was not to be regarded as cumulative, but rather as an inadvertent repetition by the testatrix of the legacy of the same amount given to the same society in the will; and that the defendants were therefore entitled to but one sum of $5,000, on a fair construction of the two testamentary papers taken together. The decree ordered was, that the executor should pay to the defendants the sum of $5,000, with interest from one year after the death of the testatrix. The executor moved for a rehearing upon the order as to interest; and thereupon the defendants moved for a rehearing upon the general merits of the bill involving the construction of the will and codicil.
I have carefully reexamined both points, not unwilling, I hope, to rectify any errors into which I may have fallen as a member of the late court.
As to the matter of interest, this further consideration has only strengthened my conviction that the order was right. The learned counsel for the executor says he claims that the late court erred in treating Loring v. Woodward, 41 N.H. 391, as overruling Pickering v. Pickering,6 N.H. 120, and Payne v. Smith, 12 N.H. 34. The counsel
is mistaken in supposing the court entertained any such idea. In Pickering v. Pickering the general rule is stated that no action can be maintained for a legacy against an executor without showing a demand, though that case was held not to fall within the rule. In Payne v. Smith the same point was directly before the court, and was, of course, settled in the same way. In neither case is there a word said about interest. In Loring v. Woodward, Chief Justice BELL states the general rule to be, — If a pecuniary legacy is payable generally, without designation of any time of payment, it is payable at the end of the year from the death of the testator without interest; but if not then paid, it bears interest after the expiration of the year; — in support of which he cites a large number of authorities. The court were satisfied that the general rule was as thus stated by Judge BELL; and the question was, whether there was anything in this case either to take it out of the rule, or to call for a modification of the ru]e in its application; — and the court were clearly and unanimously of opinion that there was not.
Much stress is laid in the argument on the fact that the society did not vote to accept the legacy, and perform the trust upon which it was given. The only trust was, to keep and invest the principal as a permanent fund, and apply the income to the purposes of their institution. This was neither complicated nor onerous. The objection was regarded as quite technical, and was thought to be sufficiently answered, if any answer were required, by the equally technical suggestion that the executor did not notify the defendants of the bequest in their favor, but left them to find it out from other sources. In reality, little importance was probably attached either to the want of a vote by the defendants or the want of notice by the executor. The probability, that if the executor had been sincerely desirous to pay over the legacy the defendants would have received it and given him ample vouchers for his protection in the probate court, was doubtless the controlling consideration in determining that there was nothing in the facts shown to take the case out of the general rule as to interest. If at the end of a year there existed a controversy as to the amount the defendants were entitled to receive under the will, no reason is seen why the executor should not have paid the money into court, or placed it where some income might be derived from it. As trustee, he would hardly be justified in permitting the fund to lie idle for so long a time, — at least, without taking advice from the court, and if anything has in fact been realized from it, nobody but the legatee has any shadow right thereto.
It cannot be denied that the main question in the case is extremely troublesome, and one upon which, with the best attention that can be given to it, the court are liable to go wrong. For this reason I have reexamined it with much care, and have again looked into all the cases referred to by counsel, as well as many others in which the subject of cumulative legacies is discussed. The result is, that I am again brought, though certainly not without doubt and hesitation, to the conclusion reached by the court when the case was first considered, namely, that
the testatrix did not intend to give the defendants two sums of $5,000, but only one.
I do not propose at this time to do more than state, in a word, the considerations which have brought my mind to this conclusion, and then inquire whether those considerations are such as might properly and legally be weighed in determining the question presented by the case.
I have looked at the will and codicil together, not, indeed, as one instrument, but as two testamentary instruments made by the testatrix in execution of the same general object, — that is, the disposition of her estate. I have accordingly placed the third item of the codicil by the side of the twelfth item in the will, and have observed and considered the fact that in both these items she has given the same sum of $5,000 to each of eleven different benevolent institutions in the city of Boston; that these institutions, established for a similar purpose and having a kindred object in view, appear to be equally worthy objects of her bounty; that their classification, both in the will and the codicil, affords intrinsic evidence that the mind of the testatrix when she made the codicil was occupied with the intention of adding to the class enumerated in the will, by extending her equal bounty to a number of other institutions which she regarded as equally deserving; that in every other instance where she repeated in the codicil the name of a legatee mentioned in the will she used the word "more." I have examined the whole will and codicil together, and considered the general scheme and method she seems to have adopted disposing of her estate, and these considerations I have weighed against, the fact that in each of two testamentary instruments she has said to the defendants, "I give you $5,000." In my mind, the former considerations have overbalanced the latter; any by this I mean to say, simply, that I find a balance of probability against an intention to double the gift.
If I have mistaken the question to be decided, or if any of the foregoing considerations are not properly to be weighed in determining it, or if it is not be decided according to the preponderance of probabilities, then my decision may be wrong. But if the question and the mode of deciding it have been rightly apprehended, the correctness of my decision depends upon whether or not too much weight has been given to the considerations bearing in one direction, or too little to those bearing in the other. This involves an inquiry as to clearness of apprehension and soundness of judgment, which, though very proper subjects of comment and criticism, do not come at all within the same category as the application of legal principles, and are not to be rectified in the way that mere mistakes in the law may be retrieved.
What, then, is the question to be determined? I understand it to be, What was the intension of the testatrix as shown by the testamentary papers she has left? That is, What do the will and codicil, read by the light of such circumstances (if any) as may properly be considered to place the court in her position, show her intention to have been? The books are full of declarations to the effect that the first great rule in
the exposition of wills, to which all rules must bend, is, that the intention of the testator expressed in the will shall prevail, provided it is consistent with the rules of law. MARSHALL, C. J., in Smith v. Bell, 6 Pet. 74. Certainly this rule is elementary, and does not require amplification. But we have been referred to some remarks of a learned English judge, the Lord Justice JAMES, in the recent case of Wilson v. O'Leary, Law Rep., 7 Ch. Ap. 448, which are supposed to indicate a different view; and as much stress has been laid upon that case, I may refer to it somewhat more at length than I otherwise should.
The case was, that a testator, by codicil, gave legacies of various amounts to nine legatees, and a year's wages to every one of his servants. He afterwards made a second codicil, which was substantially a copy of the former, except as follows: One of the legatees named in the first codicil was not named in the second; three of the legacies given by the second codicil were less than those given by the first to the same persons; one legacy was given by the second codicil to a person not named in the first; the gift to servants by the second codicil was of "a year's wages, liberally interpreted;" and the second codicil contained a direction for payment of duty on legacies. Held, that the case was not taken out of the general rule; that the gift of a legacy by a subsequent instrument to a person who takes a legacy under an earlier instrument is cumulative and not substitutionary. Near the close of his opinion the learned judge referred to has this remark: "I would only add this, that I cannot help feeling that this case has occupied more time than it would have done if I had throughout confined myself strictly to that which is my legitimate duty, — that is, if, instead of endeavoring to find out what the testator meant, I had confined myself to endeavoring to ascertain what was the meaning of the testamentary papers which he left behind him." But by this he could not have meant to say that the court should look only at the words of the instruments, and confine their inquiry to the grammatical and etymological construction of those words, for this would be at war with the most fundamental rules of interpretation. What was the actual intention of the testator, is in its nature an unmixed question of fact. The law requires that a will must be in writing, and so the question is What intention is to be found written in the will? It is of no consequence what may have been the actual intention, any further than such intention is expressed in the writing. Nothing is to be imported and incorporated into the instrument by construction. But if there be doubt as to the meaning of the words, then intrinsic evidence furnished by an examination of all the testamentary papers together, and extrinsic evidence as to the situation of the estate, the relations of the testator, c., are to be considered, in order that the court may look at the words as nearly as may be from the same position as that occupied by the testator.
There are one or two other observations in the opinion referred to, which I have found more difficulty in reconciling with what I understand to be the doctrine of the other cases, and with the course I have
taken in coming to my conclusion in this case. He says (p. 452), — "The basis of the elaborate and able arguments which were addressed to us my Mr. Kay and Mr. Pearson was, that taking the two codicils out of which the question has arisen, and putting them side by side, we, as men of the world accustomed to know how testators make testamentary instruments, and judging of all the probabilities of the case, cannot avoid arriving at the conclusion that the one codicil was a corrected and revised transcript of the other, and that the omission to deal expressly with the legacy to the housekeeper of £ 2,000, which alone has saved the first codicil from entire destruction, was a casual omission, an accidental slip, which has enabled her to claim her legacy, but which is not otherwise sufficient to induce us to avoid the inference which we are called upon to draw. In my judgment, the whole of that contention is precluded by positive rule of law." And, again (p. 454): "When there is a positive rule of law of construction, such as exists in these cases, — that is to say, that gifts by two testamentary instruments to the same individual are to be construed cumulatively, — the plain rule of law and construction is not to be frittered away by a mere balance of probabilities." By this I should understand is meant, that the two codicils are not to be looked at side by side, for the purpose of drawing inferences as to the intention of the testator by means of the comparison; and that there is an unbending rule of law which forbids absolutely the holding of any bequest to be substitutionary when it is repeated in a separate instrument.
Writers upon the law of evidence have undertaken to distribute presumptions of law into two classes, namely, conclusive and disputable — 1 Gr. Ev., sec. 14; and Mr. Greenleaf says, — "In these cases of conclusive presumption, the rule of law merely attaches itself to the circumstances when proved; it is not deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good" — id., sec. 32. "The second class of presumptions of law," says the same writer, "answering to the presumptiones juris of the Roman law, which may always be overcome by opposing proof, consists of those termed disputable presumptions. These, as well as the former, are the result of the general experience of a connection between certain facts or things, the one being usually found to be the companion or the effect of the other. The connection, however, in this class is not so intimate nor so nearly universal as to render it expedient that it should be absolutely and imperatively presumed to exist in every case, all evidence to the contrary being rejected; but yet it is so general, and so nearly universal, that the law itself, without the aid of a jury, infers the one fact from the proved existence of the other, in the absence of all opposing evidence. In this mode the law defines the nature and amount of the evidence which it deems sufficient to establish a prima facie case, and to throw the burden of proof on the other party; and if no opposing evidence is offered, the jury are bound to find in favor of the presumption. A contrary verdict would be liable to be set aside as being against evidence." Id., sec. 33.
Assuming this to be correct, — that is, admitting, what it is not necessary now to discuss, that when the court declares fact A to be prima facie evidence of the existence of fact B, a proposition of law is enunciated, — the inquiry is, To which class of legal presumptions does the one under consideration in Wilson v. O'Leary belong? I am unable to deduce any other meaning from the words of the Lord Justice JAMES, already quoted, than that he understood it to belong to the first class.
He speaks of the rule that gifts to the same individual by two testamentary instruments are to be construed cumulatively, as a positive rule of law, and says this plain rule of law is not to be frittered away by a balance of probabilities. This seems to mean no less than that you cannot go beyond the rule; for, if you can go beyond the rule, and weigh evidence intrinsic or extrinsic against what is called the presumption of law, then it follows, inevitably, that the matter must be determined by a balancing of probabilities. I consider it safe to say that the cases are all the other way — see 2 Redf. on Wills (2d ed.) 178, note 3; and that, for the present, I regard a sufficient answer to the remark.
But it is said that the two instruments must be construed independently of each other, each being considered alone substantially as though the other did not exist; — and it is thought that some observations of Vice-Chancellor BACON, in the same case of Wilson v. O'Leary, when before him — L.R., 12 Eq. 525 — give countenance to that idea. I find nothing of the kind there. Doubtless the two instruments are not to be construed as one, for if they were, the presumption would be in favor of the executor instead of against him. But if the bequest in the codicil were of a specific thing, it would be strange indeed if the court could not look into the will to see if the same thing has been once given there.
Whatever may have been said of the soundness of Lord HARDWICKE'S judgment, in Duke of St. Albans v. Beauclerk, 2 Atk. 636, I am not aware that the course pursued by Lord ALVANLEY, M. R., in Osborne v. The Duke of Leeds, 5 Ves. 369, has been questioned. In that case the testator, by his will, gave £ 10,000 each to all and every of his after-born child or children. By a second codicil, made seven years afterwards, he gave to a daughter, born after the execution of the will, the same sum — £ 10,000. The two provisions thus made for the after-born daughter were considered side by side, and it was held that the legacy given by the codicil was not cumulative. The master of the rolls, in his opinion, said, — "The question, then, is to be considered upon the will and codicil taken together." So, in Hemming v. Gurrey, 2 Sim. St. 311, Sir JOHN LEACH, V.C., says (p. 320) — "With respect to the plaintiff's claim of two annuities of £ 500 each, under the two testamentary papers of G. Hemming, I am of opinion that the second instrument was not made as an addition to, but as a substitution for, the first, if not wholly, at least in the greater part, and plainly as to the annuities in question. This is evident from comparing the form and expression of the two instruments, from the general similarity of the two annuities and legacies,
and from the particular gifts of the Barrow and Edgeware estates." And, in Gillespie v. Alexander, 2 Sim. St. 145, the same great judge, holding a second legacy given in a codicil not to be accumulative, says (p. 151), — "Every legatee named in the first paper is again named in the other, except George Gillespie, who appears by the master's report to have been then dead; and in several instances, the amount of the legacies is the same as in the first paper."
In Barclay v. Wainwright, 3 Ves. 462, Lord ALVANLEY, speaking of Coote v. Boyd (2 Bro. C. C. 521), says, — "Upon the circumstances of that case, and the evidence resulting from a comparison of the two instruments, Lord THURLOW was clearly of opinion the second was not accumulative." He then goes on to compare the provisions of the several testamentary papers in the case before him, and to draw conclusions from the comparison as to the intention of the testator. The same was done by Lord THURLOW in Moggridge v. Thackville, 1 Ves., Jr., 464. So, in the clearest and best discussion of the subject I have found in any case — that of Sir JAMES WIGRAM, in Lee v. Pain, 4 Hare 201 — the propriety of such comparison is recognized from beginning to end of the opinion; and I have seen no case where the propriety of making the comparison and of drawing inferences therefrom as to the intention of the testator has been denied, unless it is in Wilson v. O'Leary. My opinion is, that such comparison is not only proper, but necessary and unavoidable.
I have said that I attach weight to the circumstance that the testatrix used the word "more" in every other instance where she introduced in the codicil the name of a beneficiary before mentioned in the will, and the propriety of this is questioned or denied by counsel for the defendants on the strength of some observations of Sir JAMES WIGRAM in Lee v. Pain. I may say that, in my judgment, no higher authority on a question of this sort can be quoted. I have, therefore, attentively examined his opinion in the case referred to, and find that, so far from laying down any such general proposition, he distinctly admits that this is a circumstance to be considered, although he carefully guards himself against giving that circumstance too much weight in the case before him, and fortifies his position by arguments drawn from a comparison of the several testamentary instruments, as well as the axiomatic fact, that where two gifts are actually made at different times, the second is in addition to the first, whether stated to be so or not. He commences his discussion of this point with the remark, "It would be difficult to say, in the abstract, what degree of weight is due to an expression like this" (p. 218), and closes it, when considering the matter again at a subsequent stage of the case, by saying, "The observations I formerly made upon those words show that in my judgment they are in this particular case more than counterbalanced by other considerations" (p. 234). In the course of the discussion he says, — "In Russell v. Dickson, 2 Dru. War. 133, the Lord Chancellor of Ireland seems to me to have stated with great accuracy all that can fairly be said on the subject. He says, — `I assent to the
argument, that, if a testator expressly declares one gift to be in addition to another (and for this purpose the court is entitled to look at other parts of the same instrument, or at gifts in other testamentary instruments), and in another instance he makes a gift without any such declaration, this is a circumstance to show that the latter was intended not to be additional, but in substitution. But, still, too much weight must not be attached to the variation. To hold that it is conclusive would be going too far. It is a circumstance, no doubts important to show, that, where the testator meant addition, he knew how to express his meaning; and a party is entitled to rely upon it to that extent.'" This puts the matter entirely at rest, so far as regards the views of the learned vice-chancellor as expressed in Lee v. Pain, and shows that the weight to which this circumstance is entitled in one case can afford no exact measure for determining its significance in another, where the two testamentary instruments under consideration are different.
So we see that, in Allen v. Callow, 3 Ves. 292, the master of the rolls, Lord ALVANLEY, says, — "That is not an insignificant circumstance, but it is not decisive, for the same thing was done in one of the codicils in Hooley v. Hatton; but it does strengthen the argument of those who contend that one of these dispositions is substituted for the other;" and in Barclay v. Wainwright, 3 Ves. 466, the same judge says, "and I lay considerable stress upon this, — that where the testator meant addition, he has expressed it." So, in Mackenzie v. Mackenzie, 2 Russ. 262, Lord ELDON has a remark, which, as it seems to me, indicates that in his judgment this circumstance must be entitled to very considerable weight. He says, — "It is true, on the other hand, that the testator has expressly declared that the legacy given by the codicil to Margaret Lincoln should be `exclusive of any former provision' made by him for her in his last will and testament; and if there were no other facts connected with this will and codicil, it might be difficult to say what weight ought to be attached to the words used concerning that bequest. But there are other circumstances which, it seems to me, lead to a contrary inference." Other cases might be added; but this is sufficient, so far as regards authority, to show the ground upon which I have supposed the circumstance under consideration ought to be weighed by the court in determining the intention of the testatrix. Upon the reason of the thing I cannot entertain a doubt.
I have thus undertaken to show that the various considerations which have inclined my mind to the result announced in the outset are such as should properly be weighed by the court. I only propose to inquire, further, what degree of conviction these considerations must produce in the mind, one way or the other, to warrant a decision: Is the construction in this respect to be decided according to the balance of probabilities? or must all doubts be removed, and, if so, upon which side rests the burden of removing them?
We start with what is called a presumption, growing out of the fact that a legacy is given both in the will and the codicil, that the testator intended two gifts. The authorities already referred to afford
ample evidence that this presumption is regarded as what Mr. Greenleaf calls a disputable presumption; that is, if no evidence the other way appears from all examination of the two testamentary papers together, the court must hold the intention to have been to give twice: in other words, that this circumstance shows prima facie that the second legacy is accumulative. But, upon looking into the papers, intrinsic evidence the other way is found, and a question more or less doubtful is thus raised. It requires no great acumen to see that this question is in its essence purely one of fact, in the decision of which it is only necessary to take care that incompetent evidence be not received and considered. Can anything be plainer than that weighing evidence against what is thus called a disputable presumption is nothing more nor less than another name for balancing probabilities? In reality, the whole formula seems to come simply to this: when intrinsic evidence against the presumption is found in the will and codicil, the circumstance of a gift being made in both is evidence of an intention to give twice; and before it can be held that the intention was to make but one gift, this piece of evidence must be met and overbalanced by stronger intrinsic evidence the other way. I am of opinion that when the question is thus raised and put in doubt, it is to be determined upon the evidence by a balancing of probabilities; and I think the matter has been practically so treated in all the cases referred to, including Wilson v. O'Leary, notwithstanding the remark already quoted from the opinion in that case, to the effect that a positive rule of law is not to be frittered away by a mere balance of probabilities.