Brown v. Wright

• Decision Date: 01 March 1907
• Citation: 194 Mass. 540,80 N.E. 612
• Parties: BROWN v. WRIGHT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

194 Mass. 540

80 N.E. 612

BROWN v. WRIGHT et al.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1907

COUNSEL

F. E. Dunbar and G. H. Spalding, for respondent Fay.

John J Pickman, for respondents Frank B., Ella J., and Millard F Wright.

Albert M. Lyon, for respondent Gallant.

M Storey and J. L. Thorndike, for respondent W. H. Wright.

OPINION

LORING, J.

Nathan M. Wright, by his last will made in 1885, gave to his wife for life certain real estate in Lowell and the income of $5,000 with power to use the principal. To his son George P. $100 a year during the life of his (the testator's) wife, and after her decease the income of $10,000 for his (George P.'s) life; and 'should he die leaving a widow and children,' then during the life of his widow the income of this $10,000 was to go in equal parts to the widow and children with remainder over to the children in fee; 'but if he should die leaving no issue but leaving a widow,' then to his widow for life. To his son Albert certain bequests. The rest and residue was left in trust for his wife for life; on her decease certain legacies were to be paid, and then the income of what was left was to be paid to Albert for life. 'And after the termination of all the life estates herein given, bequeathed, and devised, and the payment and satisfaction of all the special and specific legacies above given and bequeathed, my trustee or trustees for the time being shall pay over and distribute all that shall then remain, if any remainder there be of my property and estate to the issue of my said sons George P. and Albert D. Wright to be theirs absolutely, or failing such issue, to my right heirs at law, to have and to hold to them, their heirs and assigns forever.'

At the date of the will the testator was 70 years old and his wife 65. They had been married for 25 years and had lived together during that time without having had a child. The two sons George P. and Albert were sons of the testator by a former wife.

Three years later, in November, 1888, his son Albert died leaving no issue.

In April of the following year the testator made a codicil, in which, after reciting the death of Albert and of another legatee, he gave (inter alia) $15,000 in place of $5,000 to his wife for life, with power to use the principal. The codicil then provides that: 'Whereas in items 6 and 7 (six and seven) of said will I made certain other bequests to my said son, Albert D. Wright and made other provisions for him and his issue, I now revoke the same in such respects and give and bequeath the same save as herein specially excepted, to John F. Kimball, the trustee named in said will, to be held, managed and disposed of as trustee in said will provided excepting so far as changed and modified by this codicil.' He gives to George the income of $20,000 in place of $10,000 after the death of his (the testator's) wife. He then provides for additional bequests to be paid after the decease of his (the testator's) wife, and changes one of his executors. It should be added that the codicil begins with the statement that he makes this codicil, 'hereby ratifying and confirming my said will in all respects save as changed by this instrument.'

A bill for instructions was brought by the trustee after the death of the wife and the payment of the legacies directed to be paid at that time. In that suit it appeared that there was left in the hands of the trustee some $50,000, and this court held that by the true construction of the will and codicil the income, over and above the income on $20,000 given to George P. for life, was to be accumulated. Brown v. Wright, 168 Mass. 506, 47 N.E. 413. George P. is now dead, never having been married and leaving no issue him surviving. This bill is brought by the trustee asking the instructions of the court as to the distribution of the trust fund which he alleges consists of about $38,000 personally and $12,000 real estate.

The fund is claimed on the one hand by the executors of and the devisees under the will of George P. on the ground that the 'right heirs at law' are to be ascertained as of the testator's death and therefore that the interest in the remainder was vested in George P. and passed under his will.

It is also claimed by ten nephews and nieces, the son of a deceased niece, and three infant children of a deceased nephew, on the ground that they, the right heirs of the testator, are to be ascertained as of the decease of George P. Wright, the last of the life tenants.

Anna E. Fay is the adopted daughter of a brother of the testator. She claims under the will of George P. Wright and also that she is an heir of the testator if the estate goes to the heirs as of the date of the death of the life tenant.

It is plain from the provisions of the will and codicil, and especially from the provisions of those instruments read in the light of the circumstances, that the will was made in the expectation that his son George would be his only child.

The first contention of those who claim under George P. Wright is that the gift over to heirs now in question is found in the will; that it must have the same construction under the will and codicil that it originally had under the will, since the construction of the clause is not affected by the change in circumstances intervening between the will and codicil; that the gift to the right heirs of the testator in the will was originally a gift over, after life estates in different parts of the trust, to the two sons, subject to the life estate in the widow on failure of issue of both sons; that under those circumstances the general rule obtains as to the...