Cammann v. Abbe

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: Cammann v. Abbe, 258 Mass. 427, 155 N.E. 438 (Mass. 1927)
• Decision Date: 02 March 1927
• Parties: CAMMANN et al. v. ABBE et al.

258 Mass. 427

155 N.E. 438

CAMMANN et al.

v.ABBE et al.

Supreme Judicial Court of Massachusetts, Bristol.

March 2, 1927.

Appeal from Probate Court, Bristol County; M. R. Hitch, Judge.

Petition by Henry H. Cammann and others, trustees under the will of Edward P. Abbe, for instructions as to distribution of trust fund. From a decree of the probate court, directing manner of distribution, Edward P. Abbe and others appeal. Affirmed.

W. M. Bastian, of Washington, D. C., and A. E. McGrath, of New Bedford, for appellant Abbe.

M. R. Brownell, of New Bedford, for appellees.

WAIT, J.

[1] Edward Payson Abbe executed his last will February 24, 1897. He was then critically ill. His heirs presumptive were a daughter, born in 1857, who had married in 1889, whose husband was living and who had one child (a son, William A. Cammann), born in 1895; and a son, born in 1864, who, also, had married in 1889, whose wife born in 1866 was living, and who had one child (a son, Edward P. Abbe), born in 1890. By the will he gave $300 to the treasurer of the city of New Bedford; $1,000 each to two nieces; his homestead ‘and all land and buildings connected therewith which I may not have sold at the time of my death,’ his household furniture and effects and his personal effects, to his son; specified property to the extent of $100,000 to trustees; and all the residue of his estate ‘to my two children in equal shares.’ The trustees were required to pay the income of the trust as follows: ‘To my two children in equal shares during their lives and upon the death of either without issue to pay whole income to survivor. Upon death of either leaving issue surviving, to pay to such issue during lifetime of other child half of income and other half to surviving child. Upon death of both my children to divide and pay over whole of said trust fund to issue then living in equal shares. If both children die without issue then’ $7,000 to a hospital; $10,000 to his son-in-law, Henry H. Cammann, if living; $10,000 to his daughter-in-law if living and unmarried; and ‘all rest to my nieces and nephews then living in equal shares, provided that if any niece or nephew shall have died and left issue such issue shall take by right of representation.’ He died the next day.

The trustees paid to the son and daughter each one-half the income of the trust until the son died January 15, 1915. They then paid one-half the income to Edward P. Abbe, the sole issue of the son, and one-half to the daughter, Mrs. Cammann, until she died in July, 1925. They now ask instructions whether the fund is to be divided and paid one-half to Edward P. Abbe, the surviving issue of the son, and one-quarter each to William A. A. Cammann and his brother, Henry H. Cammann, Jr., born September 21, 1900, the surviving issue of the daughter, or one-third to Edward, William and Henry.

The probate court has ordered that division and payment in equal thirds be made, and the case is before us upon Edward's appeal from the decree. The question is, What was the intent of the testator in using the words:

‘Upon death of both my children to divide and pay over the whole of said trust fund to issue then living in equal shares?’

[2] That intent is to be ascertained from a study of the will as a whole in the light of the circumstances attending its execution (Crowell v. Chapman [Mass.] 154 N. E. 397); using ordinary canons of interpretation only so far as they accomplish their purpose of aiding in the determination of that intent, but giving to the few combinations of words which have come to be rules of property their legal effect (Temple v. Russell, 251 Mass. 231, 236, 146 N. E. 679).

It is manifest that no division of the whole fund with payment of income from the separate parts was contemplated by the will. The trustees made no such division during the lifetime of the daughter. The words used show an intent that the fund should be dealt with as a whole until the decease of both son and daughter. They leave room for argument whether the testator in using the words, ‘in equal...