Casey v. Genter (In re Andersson's Estate)

• Decision Date: 26 June 1931
• Parties: CASEY v. GENTER et al. In re ANDERSSON'S ESTATE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

276 Mass. 165

176 N.E. 782

CASEY

v. GENTER et al.In re ANDERSSON'S ESTATE.

Supreme Judicial Court of Massachusetts, Suffolk.

June 26, 1931.

Appeal from Probate Court, Suffolk County; A. W. Dolan, Judge.

Petition by John H. Casey, administrator with the will annexed of the estate of Lillia F. Andersson, deceased, for instructions as to the construction of the will, opposed by John S. Genter and others. From the decree entered, petitioner appeals.

Affirmed.

R. J. Lane, of Boston, for John S. Genter.

A. E. Yont, of Boston, for Anna L. Heath.

Joseph Wentworth, of Boston, for Fitz Hodgkins.

SANDERSON, J.

This is an appeal from a decree of the probate court based upon a petition brought by the administrator with the will annexed of the estate of Lillia F. Andersson, who died March 3, 1923, for instructions as to the construction of her will. The material parts of the will of the testatrix are in the following terms: ‘After the payment of my just debts and expenses of my last sickness and funeral charges, I give, devise and bequeath as follows, Viz:-First: I constitute and appoint John S. Genter and John Burke (my bookkeeper) as my executors without bonds and charge them with the full disposition of my property without any interference from my heirs. One third of all I die possessed to be divided equally between my daughter Annie Louise Andersson and Anna Florence Andersson, the rest I leave without restrictions to my affianced husband John Sylvester Genter, his portion to be subject to a yearly tax of one thousand dollars a year to be given to my Father, Fitz Hodgkins and my Mother Annie M. Hodgkins on Jan. 1st of each year or to either one of them who survives the other. At their death the said sum is to revert to my daughter Annie L. Andersson to be paid her on the same date and in the same manner. A sufficient sum from the inheritance of John S. Genter-shall be set aside and invested in Government Bonds to bring in the one thousand dollars yearly. The estate to be settled in five years. Mr. Genter to be charged with the comfortable maintenance of my father and mother until the estate is settled. I make this will as I have no time to adjust things with a lawyer's assistance and am taking a trip which might result in accidents, and I do not wish any part of my property to be otherwise disposed of.’ The will was dated September 24, 1912, and one of the three witnesses to it was Anna Florence Andersson, now Keen, a legatee.

In March, 1930, the administrator with the will annexed of the testatrix received the share and interest in the estate of her husband which belonged to her estate, and now has on hand $52,219.05, subject to inheritance taxes, with which to carry out the provisions of her will. The amount thus received forms the larger part of her estate and without it there was not sufficient property in her estate to pay legacies and expenses. The first question asked in the petition is ‘Whether Anna Florence Keen, formerly Anna Florence Andersson, is entitled to receive one half of the one third of said Lillia's estate bequeathed her under said will, she being one of the three witnesses to the making, signing and execution of said will’; the second ‘Whether in case said Anna Florence Keen is not entitled to receive said one half of said one third of said Lillia's estate, the same is to be distributed as part of the rest and residue of said estate’; the third, fourth, fifth and sixth requests relate to the manner in which the annuity for the father of the testatrix shall be dealt with, it disposition at his death, the interpretation of the words ‘Government Bonds,’ and whether the estate of the testatrix is chargeable with the comfortable support of her father from the time of her death if he has been comfortably maintained by himself or his granddaughter.

Since the death of the testatrix her father, Fitz Hodgkins, has lived with his granddaughter, Mrs. Heath, who was named in the will Annie Louise Andersson and is the sole heir at law of the testatrix. The mother of the testatrix died in 1923. Her father for most of the past seven years had a monthly pension from the United States, and his granddaughter has provided him with every comfort and many luxuries at an added expense to herself or her husband of a substantial sum. He now has about $2,000.

The legacy to Anna Florence Andersson of one sixth of all the estate of which the testatrix died possessed was void because she was one of the three witnesses to the will, G. L. c. 191, § 2, and the part of the decree so deciding is affirmed. The disposition of this part of the estate depends upon the intention of the testatrix with reference to the residuary clause in her will. Ordinarily one of the purposes of a residuary clause is to dispose of all property not effectually disposed of in other parts of the will, thus making a complete disposition of all property in the estate. Bushby v. Newhall, 212 Mass. 432, 98 N. E. 1032. Unless some other purpose is expressed in the will a void or lapsed legacy falls into the residuum of the estate. Lombard v. Boyden, 5 Allen, 249, 250;Dresel v. King, 198 Mass. 546, 547, 85 N. E. 77,126 Am. St. Rep. 459;Boston Safe Deposit & Trust Co. v. Reed, 229 Mass. 267, 118 N. E. 333. If, however, the legacy which lapses is a part of the residue it cannot again fall into the residue but must pass as intestate property. Powers v. Codwise, 172 Mass. 425, 52 N. E. 525;Lyman v. Coolidge, 176 Mass. 7, 56 N. E. 831;Derby v. Derby, 252 Mass. 176, 147 N. E. 842. ‘A construction of a will resulting in intestacy is not to be adopted unless plainly required.’ Hedge v. State Street Trust Co., 251 Mass. 410, 412, 146 N. E. 802, 803; Saucier v. Saucier, 256 Mass. 107, 111, 152 N. E. 95;Gardiner v. Pelton, 260 Mass. 577, 157 N. E. 707;Lyman v. Sohier, 266 Mass. 4, 8, 164 N. E. 460.

[8] The appellant Mrs. Heath contends that the gift of one third of all the property to herself and another and of the rest to Genter constitutes one residuary clause and that therefore the one sixth which would have gone to Anna Florence Andersson (now Keen) had she not been a witness to the will is intestate property and is payable to Mrs. Heath, the only heir at law of the testatrix. The testatrix expressed the purpose to dispose of all her estate by charging her executors with the full disposition of her property, by giving one third of all she died possessed followed by a gift of the rest, and by stating ‘I do not wish any part of my property to be otherwise disposed of.’ The terms of the will do not require a construction resulting in partial intestacy. No particular words need be used to create a residuary clause. In Bates v. Kingsley, 215 Mass. 62, 64, 102 N. E. 306, the word ‘remainder’ was held sufficiently comprehensive in meaning ‘to include whatever may be left of...