Cummings' Ex'r v. Cummings

• Decision Date: 06 April 1888
• Citation: 16 N.E. 401,146 Mass. 501
• Parties: CUMMINGS' EX'R v. CUMMINGS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 501

16 N.E. 401

CUMMINGS' EX'R

v.CUMMINGS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 6, 1888.

Reserved case from supreme judicial court, Suffolk county; HOLMES, Judge.

Bill in equity by George M. Cummings, surviving executor of the will of George Cummings, against Charles H. Cummings et al., for instructions as to the $1,200 provision in the second item of the will of said testator, and as to the distribution provided for in the sixteenth or residuary item of the will. Item 2 of said will was as follows: “I give, devise, and bequeath to my beloved wife, Abigail Cummings, my dwelling-house, land, and barn, *** also twelve hundred dollars, in money, to be paid to her annually, in quarterly payments, during her life, by my executors hereinafter named.” Item 16 was as follows: “I direct my executors hereinafter named to keep safely invested all the rest and residue of my estate after payment of the several legacies herein bequeathed, and of my just debts and funeral charges, and to pay the income thereof to my dear wife during her life, and at her decease to divide the principal thereof equally between my blood relations of the degree which the law permits.” The testator died on July 7, 1881, leaving the will, which was drawn up by a clergyman without the assistance or advice of personslearned in the law. The testator's widow, Abigail Cummings, died March 10, 1887, leaving a will of which the defendants Edwin A. Hildreth and Stanley B. Hildreth are executors. The widow, and her estate since her death, have received all the net income of the testator's estate that accrued during her widowhood, and has been collected by the executor. No claim for any further payment was ever made by her, or on her behalf, until after her death, and no part of the principal was ever paid to her, and the provision for her in the second item of the will were sufficient for her comfortable support. The case was heard in the supreme judicial court before HOLMES, J. who reserved the case for the consideration of the full court.

A. Norcross, H.C. Hartwell, and C.F. Baker, for heirs of Julia I. Albee, a deceased sister of testator.

It is admitted that, in cases of doubtful construction, the law favors vested rather than contingent remainders, and that a bequest to “heirs” or “heirs at law” will be construed as referring to those who are such at the time of the testator's death, unless a different intent is manifested by the will. Gibbens v. Gibbens, 140 Mass. 102, 3 N.E.Rep. 1; Blanchard v. Blanchard, 1 Allen, 223;Abbott v. Bradstreet, 3 Allen, 587;Childs v. Russell, 11 Metc. 16. But the intent of the testator, if it can be ascertained, is always to govern the construction to be given, whether the result be a vested or contingent remainder, (Sears v. Russell, 8 Gray, 86, 94;Olney v. Hull, 21 Pick. 313;Denny v. Kettell, 135 Mass. 138;) words of survivorship in a bequest of a remainder being held to create a contingent remainder, (Gibbens v. Gibbens, ubi supra; Denny v. Kettell, ubi supra.) The form of the bequest is important. The estate is not given to the widow for life with a remainder over, but is given to executors for the purposes specified. Such bequests are held not to vest until the period of distribution. Sears v. Russell, 8 Gray, 86; Batsford v. Kebbell, 3 Ves. 363; Briden v. Hewlett, 2 Mylne & K. 90; Butler v. Bushnell, 3 Mylne & K. 232; Clapton v. Bulmer, 10 Sim. 426; Thomas v. Hole, Cas. t. Talb. 251.

Harris & Tucker, for issue of Lydia Morne, a deceased sister of testator.

It will not be controverted that the word “relations” used by the testator means the next of kin, or those who would take under the statute of distributions. 2 Jarm. Wills, (5th Amer.Ed.) *120 et seq.; Esty v. Clark, 101 Mass. 36. The general rule is that where a devise or bequest is made to the testator's relations, or next of kin, whether or not an intermediate estate is interposed, those who stand in that relation at the death of testator will be entitled, whether living or not at the time of the distribution. 2 Jarm. Wills, *129 et seq., *207. Such is the rule in this state. Chief Justice SHAW in Childs v. Russell, 11 Metc. 16, 23;Shattuck v. Stedman, 2 Pick. 468;Russell v. Hoar, 3 Metc. 187;Fay v. Sylvester, 2 Gray, 171;Gibbens v. Gibbens, 140 Mass. 105, 3 N.E.Rep. 1. The division should be per capita, and not per stirpes. Tillinghast v. Cook, 9 Metc. 148. As to “next of kin,” however, vide Swasey v. Jaques, 144 Mass. 135, 10 N.E.Rep. 758; 2 Jarm. Wills, (5th Amer.Ed.) *108, note 1. But where property is left to “relations” simply, without words of proportion, although the statute determines who shall take, yet they take per capita and not per stirpes. 2 Jarm. Wills, (5th Amer.Ed.) *122, and cases cited; 2 Redf. Wills, (2d Ed.) p. 85, §§ 30-32, and cases cited; Id. p. 86, § 32. In construing wills technical words are to be taken in their technical sense unless a plain intention appears to the contrary. Kean v. Roe, 2 Har.(Del.) 103. And it is the duty of the court to give to words in a will the construction which has been given them by express adjudication, although the court may surmise that the testator, perhaps, would have used different words had he understood the legal construction which had been given to those which he did use. Kean v. Roe, 2 Har.(Del.) 115, 116;McNeilledge v. Galbraith, 8 Serg. & R. 43;Wessenger v. Hunt, 9 Rich.Eq. 471. The words “equally to be divided,” and their equivalents, are technical words, and have a settled construction, imparting equality of division per capita and not per stirpes. Kean v. Roe, supra; McNeilledge v. Galbraith, supra; Wessenger v. Hunt, supra; Purnell v. Culbertson, 12 Bush, 369;Bender's Appeal, 3 Grant Cas. 210; Roper v. Roper, 5 Jones, Eq. 16; Collins v. Hoxie, 9 Paige, 81; Cheevers v. Bell, 1 Jones, Eq. 234; Farmer v. Kimball, 46 N.H. 435;Lee v. Lee, 39 Barb. 172;Nichols v. Denny, 37 Miss. 59. See 6 Bac.Abr. (Phila.Ed.1832,) 187, tit. “Legacies;” Thomas v. Hole, Cas. t. Talb. 251; Holloway v. Radcliffe, 23 Beav. 163; and Fielden v. Ashworth, L.R. 20 Eq. 410; Houghton v. Kendall, 7 Allen, 72;Holbrook v. Harrington, 16 Gray, 102;Leland v. Adams, 12 Allen, 286;Rand v. Sanger, 115 Mass. 124;Hall v. Hall, 140 Mass. 267, 2 N.E.Rep. 700. Words are to be construed according to their natural meaning. Broom, Leg.Max. 542, and cases cited. Force and meaning are to be given to each sentence, phrase, and word, if possible, and none are to be so construed as to be mere surplusage. 2 Pars.Cont. (5th Ed.) 505, note i., and cases cited. In construing a will the general object of the testator should be looked for, and to ascertain it all the circumstances surrounding him, and the condition of his property at the time he made the will, may be taken into account. Delaney v. Van Aulen, 84 N.Y. 16. It may be conceded that, if the income had not amounted to $1,200 in any year, the widow might have had the right to go to the principal. But we contend that the income was first to be exhausted before the principal could be touched. The $1,200 was an annuity. Stephens v. Milnor, 24 N.J.Eq. 358. In many cases the question has arisen whether, income proving insufficient, an annuitant can resort to the principal. 2 Williams, Ex'rs, 1361, note a, and cases cited. In these cases so cited, and in many others of similar character, it has been assumed that the income was first to be used. In most of them, it is true, the annuity was, in terms, directed to be paid out of the income, but not in all. Wroughton v. Colquhoun, 1 De Gex & S. 36; Treadwell v. Cordis, 5 Gray, 341.

A.T. Butterworth, for defendant Charles H. Keyes, nephew of the testator.

One of the best established rules of construction both here and in England is that estates shall not be held vested rather than contingent if in conflict with the apparent intention of the testator. Sears v. Russell, 8 Gray, 94. And “the question to what period survivorship is to relate must depend rather upon the apparent intention of the testator, in each case, than upon any rigid rule.” Denney v. Kettell, 135 Mass. 139. In this clause of the will there is no devise of lands; it is only of money and other personal estate, and in such case a different rule of construction applies. Dingley v. Dingley, 5 Mass. 535;Emerson v. Cutler, 14 Pick. 108-115. There is no doubt that it is the settled policy of the law in this commonwealth not to hold a remainder contingent when it can be held vested without defeating the intention of the testator. But a comparison of the language of the will in this case with the language in the cases where this court has held remainders vested shows that in all, or nearly all, the only contingency was the time of the death of the person having the life-estate, while in this case it is left uncertain who is to take the remainder. Dodd v. Winship, 144 Mass. 461, 11 N.E.Rep. 588; Gibbens v. Gibbens, 140 Mass. 103, 3 N.E.Rep. 102; Wilmarth v. Bridges, 113 Mass. 407;Hill v. Bacon, 106 Mass. 578;Pike v. Stephenson, 99 Mass. 188;Blanchard v. Blanchard, 1 Allen, 223;Shattuck v. Steadman, 2 Pick. 468. Here the gift was absolute, and the parties specified, and only the time of enjoyment uncertain. Bates v. Webb, 8 Mass. 458, has no bearing upon the case at bar. In Abbott v. Bradstreet, 3 Allen, 587, the testator, after carving out certain life-estates, provided that the remainder should “go and descend to my heirs at law.” To hold in the case at bar that the remainder did not vest until the decease of the life-tenant would not contravene the decision in Abbott v. Bradstreet. In fact, there is no analogy between the cases. Parker v. Converse, 5 Gray, 336.

T.P. Proctor, for defendants Charles H. Cummings, George W. Cummings, Maria T. Avery, Emeline L. Gowen, and Solon Wilder, executor.

The residuary estate of the testator vested at the time of his death. 2 Redf. Wills, *251; Letchworth's Appeal, 30 Pa.St. 175. See Bennett's Trust, 3...