Crowell v. Chapman

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: WAIT
• Citation: Crowell v. Chapman, 257 Mass. 492, 154 N.E. 397 (Mass. 1926)
• Decision Date: 26 November 1926
• Parties: CROWELL v. CHAPMAN et al.

257 Mass. 492

154 N.E. 397

CROWELL

v.CHAPMAN et al.

Supreme Judicial Court of Massachusetts, Barnstable.

Nov. 26, 1926.

Appeal from Probate Court, Barnstable County; C. O. Campbell, Judge.

In the matter of the estate of Daniel Hedge. Petition for the construction of a will by Prince M. Crowell, administrator, against Benjamin R. Chapman, individually and as executor of the will of Abby M. Hedge, and others. From the decree rendered, the respondent named appeals. Decree modified, and petitioners instructed.Parker & Fortier, of Brockton, for appellant.

J. T. Hughes and H. L. Barrett, both of Boston, for appellees Milton P. Hedge and others.

Gaston, Snow, Saltonstall & Hunt, of Boston (F. T. Hammond, Jr., of Cambridge, of counsel), for appellees Grace Hedge Kemp and others.

WAIT, J.

This petition prayed the court for the construction and interpretation of certain articles of the will of Daniel Hedge, and for instructions with regard to the persons to whom the property dealt with by these articles should be distributed. The first 18 articles and the first codicil gave specific legacies of small amounts. No questions arise in regard to these, nor in regard to article 19, which gave to his widow his ‘dwelling house, barn, and outbuildings, and all of my homestead land, situated in East Dennis, Mass., to have and to hold to her own use and behoof forever.’

The judge of probate decreed that under article 20 the widow, Abby M. Hedge, took a life estate in the property given with power to appropriate the principal and income for her happiness or comfortable support if she so desired; that, under article 24, upon her decease, what remained, with the exception of certain property devised by articles 22 and 23, passed to the persons, other than the widow, who would have inherited Daniel Hedge's estate had he died intestate, and who were living at the time of his death; that Abby M. Hedge's devisees or heirs at law were not to be included in the distribution; that article 25 was a recommendation only, and that the property dealt with by that article passed on the death of Abby M. Hedge to the persons entitled to the residue under article 24.

The appellant, who is executor and residuary legatee under her will, contends that the judge erred in holding that Abby M. Hedge had only a life estate, that her devisees and heirs at law had no standing as distributees, and that, if she took a life estate, she was to be excluded in determining those who would have inherited Daniel Hedge's estate had he died intestate.

The principles upon which this court proceeds in the construction of wills have been so recently and so fully stated in Temple v. Russell, 251 Mass. 231, 235, 236, 146 N. E. 679, that they need not be restated. The law is to get at the intent of the testator and to give it effect; but not to create an intent when none appears, nor to permit some of the words of a will to contravene an intent fairly to be deduced from a study of the will as a whole and of the circumstances in the light of which it was executed.

[3] Daniel Hedge had had two children, both of whom died unmarried before he made this will on November 18, 1905. His nearest kin were two sisters. He had numerous nephews and nieces. His main purpose in executing a will manifestly was to express his friendly feeling for these kin and to provide amply for his wife. To them he gave the samll legacies already mentioned. To her he gave the homestead, in fee, by apt words in article 9, and to her, by article 20, he gave as follows:

‘All the rest, residue and remainder of my property and estate, real, personal and mixed, which at the time of my death I own, am interested in or entitled to, and over which I have the power of disposal, I give to my wife, Abby M. Hedge, to her own use and enjoyment, during her life; and the principal of it may be spent or used by her, if she shall at any time think that such a course will add to her happiness or comfortable support. I give to her in her own right or as executrix of this will, the most unlimited power and authority, to sell and convey in fee simple: free from all remainders and trusts, with warranty if she chooses, and without the necessity of applying to any court for leave so to sell, all or any part of parts of my real estate, at such time or times, at auction or at private sale, to such person or persons, and for such consideration as may seem to her judicious and for the best interest of herself; and no purchaser from her in either capacity, shall in any possible event be found to see to the application of the purchase money therefor. She may spend for her own use the net proceeds of all such sales, or said proceeds may be by her invested from time to time at her discretion; and the income and also the principal of all such investments, may be applied by her to her own use if she chooses; and she shall never be called on to account for the expenditure by her for her use, happiness or comfortable support, of any part or parts of my said property; either principal or income, and whether said property be real estate, personal or mixed property. And I also give to her the most unlimited power and authority, in her own right, or as executrix of this will, to pledge in mortgage any of such property, and to make, execute and acknowledge and deliver all proper deeds to effect such mortgage; or to sell and convey any or all of such property as previously mentioned.’

The intent to give only a life estate is almost vocal. Article 19 shows that the testator knew how to give a fee simple. He could have given one here, if he had wished, yet he turned away from the language creating a fee and gave only ‘during her life,’ adding power after power which were entirely uncalled for if he had supposed himself to have given a fee. His opinion in regard to what he had given appears with great distinctness in article 21, where he begins himself to dispose of what is left of ‘my said property at her death’; and in articles 22 and 23, where he gives his cranberry swamp land with other land, buildings, engine and machinery and the rights and privileges thereto appertaining to his nephews Joseph, John and George Hedge if ‘unappropriated expended or sold’ by his widow-all of which provisions were void if he had given his wife a fee. Article 25 is even more suggestive; for by that article, stating his realization that there might be left something from accumulation of income greater ‘than she may need for her happiness or comfortable support,’ and his desire to make final disposition of such income in accord with her desire and wishes, he ‘recommends' its disposition by her in a way he indicates. It is incredible that he would have troubled to indite articles 21, 22, 23, and 25, or have left the law to distribute the ‘final remainder of his property * * *’ as he did by article 24, had he intended to give Abby M. Hedge a fee, and believed he had so given.

[4][5][6][7] The rule that an ascertainable intent is to govern put an end to the rule of law that a gift to A. for a life estate with full power of disposition, remainder in what might be left at his death to B., gave a fee to A. and nothing to B. Both rules cannot coexist. The intent to give something to B. is too plain. Kemp v. Kemp, 223 Mass. 32, 111 N. E. 673, and cases cited. The judge was right in holding that Abby M. Hedge took only a life estate in the property given by article...