Bartlett v. Houdlette

• Decision Date: 05 May 1888
• Citation: Bartlett v. Houdlette, 147 Mass. 25, 16 N. E. 740 (Mass. 1888)
• Parties: BARTLETT et al. v. HOUDLETTE et al.
• Court: Supreme Judicial Court of Massachusetts

147 Mass. 25

16 N.E. 740

BARTLETT et al. v. HOUDLETTE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

May 5, 1888

COUNSEL

J.W. Spaulding, for respondents H.C. Houdlette Edward E. Houdlette, and Mrs. S.J. Spaulding.

The intention of the testator, derived from the will itself controls. Jackson v. Staats, 11 Johns. 337; Mann v. Mann, 14 Johns. 1; Weston v. Weston, 125 Mass. 268; Hawley v. Northampton, 8 Mass. 3; Hall v Tufts, 18 Pick. 455; Malcolm v. Malcolm, 3 Cush. 472; Gifford v. Choate, 100 Mass. 343; Barrett v. Marsh, 126 Mass. 213; Rhodes v. Rhodes, 137 Mass. 343; Cotton v. Smithwick, 66 Me. 360; Doane v. Hadlock, 42 Me. 72; Shaw v. Hussey, 41 Me. 495; Deering v. Adams, 37 Me. 264; Fisk v. Keene, 35 Me. 349; Davis v. Callahan, 78 Me. 318, 5 Atl.Rep. 73. If the testator had not intended to include H.C. Houdlette and E.E. Houdlette with the other nephews as beneficiaries under the seventh item in his will, he could easily enough have said so, and it would have been the natural thing for him to have said so. See language of Mr. Justice DEVENS in Goddard v. Whitney, 140 Mass. 98, 3 N.E. 30, and Mr. Justice COLBURN in Cushing v. Burrell, 137 Mass. 24. The eleventh item of the will disposed of the residuum. It clearly enough appears that Capt. Houdlette intended to dispose of his whole estate by his will. That construction is favored which avoids partial intestacy. Damon v. Bibber, 135 Mass. 458. It is presumed that a testator, when he makes and publishes a will, intends to dispose of his whole estate, unless the presumption is rebutted by its provisions or evidence to the contrary. Higgins v. Dwen, 100 Ill. 554; Clark v. Atkins, (N.C.) 17 Reporter, 759. By item 11, the residuary clause, the testator intended, by the word "legatees," to include all the persons--relatives--to whom he made bequests in his will, and no one else. "Legatee, one to whom a legacy is bequeathed." Webst.Dict. See Bouv.Law Dict. He calls the provisions in behalf of the cemetery "expenses" and "money donated." All the other bequests he calls "legacies." The "legatees" referred to in item 11 clearly embrace only those who were to receive the "legacies" referred to in item 9.

J.H. Flint, for F.A. and W.S. Houdlette.

The meaning to be settled upon is that which the words and language of the whole will, properly interpreted, convey per se; and "words are to be taken in their plain and usual sense, unless a clear intention to use them in another sense can be collected, and that sense ascertained besides." Schouler, Wills, § 472. The intention, as derived from the whole will, controls. Weston v. Weston, 125 Mass. 268; Rhodes v. Rhodes, 137 Mass. 343. In aiding to carry out the apparent intention, the court will change or mould the language of the will. Metcalf v. Framingham Parish, 128 Mass. 370. It will omit, change, or supply words in order to get at the true meaning. Schouler, Wills, § 377. And it is submitted that the testator intended, in the seventh clause, to have said, to each of my nephews not "already mentioned" or "provided for." The court may discard words as surplusage which are senseless as they stand in the instrument. Id. § 477. Words, to constitute a residuary clause, must be clear. Dole v. Johnson, 3 Allen, 364. "The executor, as such, is bound to administer the whole estate, as well that not given by the will as that embraced in it," (Newcomb v. Williams, 9 Metc. 533;) and the executor is the trustee, for the next of kin, of the undisposed-of residue, (Hays v. Jackson, 6 Mass. 148; Nickerson v. Bowly, 8 Metc. 424.) As such executors, the plaintiffs in this case, it is claimed, should pay to these defendants that portion of the surplus above the legacies to which they would unquestionably have been entitled if said Houdlette had died intestate.

L.W. Howes, for certain defendants.

Of course, we are to get at the intention of the testator, and from the words he has used, if possible, as to the different parts of the will, and not leave his intention to mere conjecture; but if the intention is not clearly expressed as to any matter, and there is an apparent inconsistency in some of the clauses, or doubts as to what the testator meant in some of them, we must read and consider the whole will, and see if we can infer from it what is not clearly expressed, but was evidently intended, and thus supply the defect by implication. Metcalf v. Framingham Parish, 128 Mass. 370; Ferson v. Dodge, 23 Pick. 287. I submit that the small gifts to nephews, of $100 each, was not to be lessened by any deficiency, and, if so, they were not to be increased by any surplus, and so the five nephews covered by clause 7 are not "legatees" within the meaning of clause 11.

Eugene P. Carver, for executors.

OPINION

MORTON C.J.

The plaintiffs in their bill present two questions: one as to the construction of the seventh clause in the will, and the other as to the construction of the eleventh clause. The seventh clause is as follows: "I give to each of my nephews, one and all, one hundred dollars each." There seems to be little room for doubt as to the meaning of this clause. The language clearly includes all his nephews. One fact, that he had in the previous parts of the will given legacies to three of his nephews, furnishes no reason for cutting down his language, and excluding them from the provisions of this clause, which clearly includes them. We can see no indication that the testator did not intend that, according to the clear import of his language, the nephews to whom legacies had previously been given, should receive, under this clause $100, equally with his other nephews. Cushing v. Burrell, 137 Mass. 21. The eleventh clause is as follows: "Now, if, in settling up my estate, there should not be money enough to pay the legatees what I have willed them, then pay one and all pro rata, each; or, if...