Best v. Berry

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: SHELDON, J.
• Citation: Best v. Berry, 189 Mass. 510, 75 N.E. 743 (Mass. 1905)
• Decision Date: 28 November 1905
• Parties: BEST v. BERRY.

189 Mass. 510

75 N.E. 743

BEST v. BERRY.

Supreme Judicial Court of Massachusetts, Bristol.

November 28, 1905

COUNSEL

J. J. O'Connor and Wm. J. Corcoran, for appellant.

Phillips & Fuller, for appellee.

OPINION

SHELDON, J.

Nancy C. Chace died February 16, 1903, leaving a will, the material parts of which are as follows:

'First. After the payment of my just debts and funeral charges, I give and bequeath the sum of two handred dollars to my oldest son, Lewis W. Berry.

'Second. I give and bequeath the rest and residue of my estate to my younger children, Elbridge G. Chace and Ellen I. Best, to be divided equally between them.

'Third. I hereby nominate my son Elbridge G. and my daughter, Ellen I. Best, sole executors of this will, and request that no sureties be required on their bond as such executors.'

Lewis W. Berry is the son of the testatrix by her first husband, who died in 1859, and Elbridge G. Chace and Ellen I. Best are her children by her second husband, who also died before the date of her will. At the date of the will the three children named therein were living, but Elbridge G. Chance died before the testatrix, intestate and leaving no issue. The testatrix received at least a substantial part of her property under the will of a sister of her second husband. The petitioner was appointed executrix of Mrs. Chace's will, and having paid all debts and charges and the legacy to Lewis W. Berry, and having a considerable residue in her hands, she brought this petition in the probate court to determine her rights and those of Berry under the residuary clause of said will. She claims the entire residue, contending that it was bequeathed to a class of which she is the survivor, while the respondent, Berry, claims that the residue was given in equal parts to the petitioner and the deceased severally, and not as members of a class, and that upon the decease of said Elbridge the share bequeathed to him descended in equal parts to the heirs of the testatrix--that is, one-half to the petitioner, and one-half to the respondent--so that the respondent is now entitled to one-fourth part of such residue. The probate court entered a decree in favor of the respondent's contention, and the petitioner appealed.

1. After the death of the testatrix there was found among her private papers, together with her will, a memorandum, reading as follows:

'Fairhaven, I have finished this the 7th day of December, 1902, began it a month ago.

'Nancy C. Chace.

'Lewis W. Berry. Rock Elm, Wis.

'I have remembered him, it was my duty, he was a neglected child after nine years old.

'Ida M. Putny. Gilmington, Wis.

'Ellen, give her 25 dollars, is my wish.

'She is my granddaughter & married.

'Mary E. Berry. Marinett, Wis.

'Give her 50 dollars, she is single, also my granddaughter, not strong.

'Alvira Cowley, Plymouth, Mass.

'Give my niece 50 dollars as a debt of gratitude, she & I understand.

'A mat to Frank Shooks.

'A mat to Effie Peck.

'Silk quilt to Deborah, and anything else you wish.

'Alter & Ellen what they wish.

'Give Will's folks two quilts, the same to Walter.

'You will do this for me Ellen--but give no money legacies unless you have plenty for other expenses.

'Your mother.

'To Ellen I. Best, Stoneham, Mass.

'This is not a legal document buy you with your principal will legalize it if necessary with without interference if so make what change you need.

'Feb. 3d, 1903.

N.C. Chace.'

The authenticity of this memorandum is admitted, and it is agreed that it may be admitted in evidence, if competent; but the respondent denies its competency. The petitioner contends that the contents of this memorandum indicate an intention that Berry should have only the 200 bequeathed to him, and that the whole of the residue should go to the younger children; that it is equivalent to a declaration by the testatrix that her intention was what the petitioner now contends that it was. But the very statement of her contention is enough to overthrow it. The language of the will is to be construed with reference to the subject-matter and all the surrounding facts which were known to the testatrix. Her purpose and intention must be gathered from the language of the will, taken in connection with such attendant circumstances. Gould v. Chamberlain, 184 Mass. 115, 68 N.E. 39; Morse v. Stearns, 134 Mass 389, 390; Buckley v. Gerard, 123 Mass. 8. And where, as here, there is no ambiguity on the face of the will, taken in connection with all the surrounding facts, so that no doubt is raised as to the subjectmatter of the bequest, or the identity of the legatee, extrinsic evidence of the intention of the testatrix is not admissible to control or alter her legal intent as manifested by the will itself. Lincoln v. Perry, 149 Mass. 368, 21 N.E. 671, 4 L. R. A....