Crocker v. Crocker

• Decision Date: 25 June 1918
• Citation: 230 Mass. 478,120 N.E. 110
• Parties: CROCKER et al. v. CROCKER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

230 Mass. 478

120 N.E. 110

CROCKER et al.

v.CROCKER et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 25, 1918.

Appeal from Supreme Judicial Court, Middlesex County.

Bill for instructions by Albert W. Crocker and others, trustees, against Annie L. Crocker and others. From decree of a single justice of the Supreme Judicial Court, Annie L. Crocker and the Lowell General Hospital appeal to the full court. Decree affirmed.

Frank E. Dunbar, of Lowell, for appellant Lowell General Hospital.

Hartley F. Atwood and H. La Rue Brown, both of Boston, for appellant Crocker.

Lester M. Bacon, of Boston, and Clarence L. Newton, of Boston, for appellee Myra N. White.

RUGG, C. J.

This is a bill for instructions brought by trustees under the will of William B. Spalding, who died in 1912 leaving a widow and as his next of kin a nephew, Edward H. Nichols, since deceased, and a niece, Annie L. Crocker. His widow waived the provisions of the will and still survives. Her waiver causes doubt as to the disposition of the estate under the will. It is apparent from other clauses of the will that there is to be no final distribution of the estate at least until after the death of the wife. The clauses governing the issues now presented are in these words:

‘Fifth. All the rest, residue and remainder of my estate both real and personal I give, devise and bequeath to my nephew Edward H. Nichols of Brookline in the county of Norfolk, Albert W. Crocker and Frederick Bailey both of said Lowell and their successors, in trust, to hold and manage the same and dispose of the income thereof in the following manner: I direct my said trustees to pay to my wife Mary E. Spalding during the term of her life, one-third of the net income of the principal of the trust estate herein created, quarterly, or as much oftener as they deem best; to my nephew Edward H. Nichols of said Brookline and to my niece Annie L. Crocker wife of Albert W. Crocker of said Lowell each the sum of fifteen hundred dollars during the term of their lives; to the Lowell Humane Society of Lowell, Mass., semiannually, or as much oftener as they deem best the sum of fifteen hundred dollars; and the balance of the income of the principal of the trust estate quarterly, in equal shares to my said nephew Edward H. Nichols, and to my said niece Annie L. Crocker during the term of their lives.’

‘Eighth. In case either my said nephew or my said niece dies before my said wife then I direct my said trustees to pay one third of the net income of the trust estate which the deceased received during his or her lifetime to the survivor, quarterly, for and during the term of his or her life, and one third to my said wife, quarterly, during the term of her life, and one third semi-annually in equal shares to said Lowell Humane Society and said Lowell General Hospital.’

The cardinal and familar rule in the interpretation of wills is to ascertain from the testamentary words construed according to their natural meaning the intent of the testator and then to give effect to that intent unless prohibited by some positive rule of law. It is manifest from this will that the testator made no provision for the event which has happened, namely the waiver by his widow of the provisions made by the will for her benefit. It is to be presumed, however, that the testator had in mind the possibility that she might pursue that course and knew that he could not by his will prevent her from doing so. Upham v. Emerson, 119 Mass. 509, 513;Sawyer v. Freeman, 161 Mass. 543, 547, 37 N. E. 942. It is not for the court to speculate as to what the testator might have done if the exact situation which has arisen had in truth been in his mind when making his will, but to determine the meaning of the words actually used and apply that meaning to the facts presented. The effect of the waiver by the widow and the assertion of her statutory rights is to reduce the estate available for the payment of the legacies. Other legatees must lose as a result of her action. The consequence in the absence of expression of testamentary intent to the contrary is that the loss must fall upon the residuary legatees because no definite sum or specific legacy is given to them. They take whatever is left undisposed of by other provisions. Firth v. Denny, 2 Allen, 468, 471;Pace v. Pace, 271 Ill. 114, 120, 121, 110 N. E. 878. Clause fifth of this will is a true residuary clause in form and substance: But it has within itself preferences and provision for a final residue: one third is given to his widow; three annuities, each of $1500, are given to three different persons and ‘the balance’ which in this connection is equivalent to a gift of the final rest, residue and remainder is divided equally between his niece and nephew. The word ‘balance’ in its collocation is broad enough to include the income which but for her waiver would have gone to the widow. It is natural to presume that such income, undisposed of directly in the event which has occurred, should go to the residuary legatees in preference to others. That is the effect of the words which now have become operative. Chase v. Dickey, 212 Mass. 555, 565, 99 N....