Schell v. Schuler

80 N.E. 523, 194 Mass. 441, 1907 Mass. LEXIS 999

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1907
• Status: Published

Opinion

Morton, J.

The only question arising upon the report is, whether the claim for damages by reason of the location of the railway in front of the premises 1354 and 1358 Washington Street passed to Peter C. Schell under the will of his father Peter Schell, or is undevised estate. The devise is as follows: “ To Peter C. Schell, my son, all the real estate at 1354 and 1358 Washington St. Boston, together with all the personal property connected therewith, consisting of horses, carriages carts furniture fixtures, the good will in the business all stock in trade — the same now used in part as a bakery and dwelling houses.” The only other clause in the will which is now material immediately succeeds this and is as follows: “I direct that my said son, Peter C. as soon after my death as may be, pay to Katie Luppold, my daughter, wife of Frank Luppold, now residing in Heidleburg, Germany, five thousand (5000$) dollars out of his, Peter C’s share above stated, which with the amounts that I have heretofore given her I believe is her fair share.” The claim for damages accrued before the execution of the will, and the contention of those representing the estate of Peter C. Schell, the son, is that the words “ which with the amounts that I have heretofore given her I believe is her fair share ” in the bequest to Katie Luppold show in connection with the rest of the will and the circumstances of the case an intention on the part of Peter Schell not to die intestate, and that, in order to avoid intestacy and carry out the testator’s intention, the words “ consisting of horses, carriages carts ” etc. can be and should be disregarded and the devise of “all the real estate at 1354 and 1358 Washington St. Boston, together with all the personal property connected therewith” can be and should be construed to include the claim for damages.

It is no doubt true that in the search for the testator’s intention words may be disregarded or supplied if thereby his intention as manifested by the language used may be brought to light and effect given to it. Boston Safe Deposit & Trust Co. v. Buffum, 186 Mass. 242. Dean v. Gibson, L. R. 3 Eq. 713. If, for instance, it appeared in the present case that the testator intended to dispose of the whole of his estate by his will and intestacy would be avoided by disregarding the words “ consisting of horses ” etc., that might be done. So too if it clearly appeared that he intended to include the claim for damages in the devise of the real estate at 1354 and 1358 Washington Street, effect would be given to such intention notwithstanding the words describing the personal property which follow. But there is no residuary clause in the will and we do not see how an intention not to die intestate can be inferred from the words quoted above from the Katie Luppold bequest and the circumstances as disclosed by the agreed facts. The inventory shows that the will did not in fact dispose of the whole estate so that if there was such an intention it failed of accomplishment. And the words quoted from the Katie Luppold bequest may have referred and probably did refer to what was her fair share as compared with the $6,000 given, to each of her sisters.

The question then remains whether the devise of the real estate at 1354 and 1358 Washington Street can or should be construed to include the claim for damages. If the devise had been of the real estate, and of all of the personal property “ consisting of horses ” etc., there would be strong ground for holding that the description of the personal property was a falsa demonstratio, and that the claim for damages passed under the general phrase “all personal property.” But the devise is not of the real estate and all the personal property, but of the real estate “ together with all the personal property connected therewith, consisting ” etc. Although the claim for damages grew out of the real estate devised it cannot be said in any proper sense to be “ connected therewith.” At the time when the will was executed the claim for damages was a chose in action. It had no connection with the real estate and would not have been included in a conveyance thereof. It is possible that the testator, if he thought of the matter at all, may have supposed that it was included in the devise to his son. But as the will is drawn, we feel compelled to hold that the claim for damages did not pass to the son, but must be regarded as intestate property.

Decree accordingly.