Brainard v. Darling
| Decision Date | 30 January 1882 |
| Citation | 132 Mass. 218 |
| Parties | Elizabeth H. W. Brainard v. Charles C. Darling, executor |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Suffolk.
Judgment affirmed.
F. F. Heard, for the plaintiff.
B. L. M. Tower, for the defendant.
The defendant's testatrix gave to the plaintiff in her will a legacy of "one hundred dollars, including money trusteed at the Union Savings Bank." When the will was made, an action was pending wherein the plaintiff sought to recover from the testatrix the sum of eighty-two dollars; and the Union Institution for Savings, where the testatrix had a deposit of $ 545, was summoned therein as trustee. Before the death of the testatrix, "neither party" was entered in the action, and the trustee was discharged. The plaintiff contends that the word "including" means, in this connection, "in addition to," and that the testatrix intended to give the plaintiff not only one hundred dollars, but in addition to that sum all the money she had in the bank; the words "money trusteed at the Union Savings Bank" being descriptive of, and intended to identify, the whole amount which she had then on deposit. But this is a forced construction, inconsistent with the meaning of the words used by the testatrix; and we can have no doubt, from the language of the bequest, taken in connection with the facts existing at the time the will was made, that she intended a gift to the plaintiff of one hundred dollars only, which sum was to include the amount for which the bank might be held liable as trustee; or, in other words, that the one hundred dollars was to include the amount which the plaintiff claimed to be due from her. No question is made that the Union Institution for Savings is the bank described in the legacy as the Union Savings Bank.
Judgment affirmed.
To continue reading
Request your trial
-
United States v. Hines
...incident or pertinent; comprehend; take in; as the greater includes the less; * * * the Roman Empire included many nations." Brainard v. Darling, 132 Mass. 218; Henry's Executor v. Henry's Executor, 81 Ky. 342; Neher v. McCook County, 11 S.Dak. 422, 78 N.W. 998; Hibberd v. Slack, C.C., 84 F......
- Benjamin v. Metropolitan Street Railway Co.
-
Harris v. Quincy, Omaha & Kansas City Railroad Company
... ... action cannot be sustained. (Christian v. Hanna, 58 ... Mo.App. 37.) As was said by Lord MANSFIELD in Farmer v ... Darling (4 Burr 1791) "the foundation of the action ... was malice" and "malice, either express or implied, ... and the want of probable cause must both ... ...
-
Red Wing Malting Co. v. Willcuts
...and discussed some of the cases where the word "including" had been under consideration. For instance, the court pointed out in Brainard v. Darling, 132 Mass. 218, that a legacy of $100, "including money trusteed at a certain bank," could not be construed as meaning that the sum of $100 was......