Cummings v. Bramhall

• Decision Date: 21 September 1876
• Citation: 120 Mass. 552
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: John Cummings, administrator, v. William T. Bramhall & others

120 Mass. 552

John Cummings, administrator, v. William T. Bramhall & others

Supreme Court of Massachusetts

September 21, 1876

[Syllabus Material]

Suffolk. Bill in equity originally brought by Andrew T. Hall executor of the will and codicil of William Bramhall, and, after the death of Hall, revived by the administrator with the will annexed of the estate of Bramhall, to obtain the instructions of the court.

The will of the testator, dated April 18, 1865, contained the following clauses:

"Fourth. I give and bequeath the sum of twelve thousand dollars to said Andrew T. Hall, in trust, for the benefit of my son Robert Bramhall during his life, to be used and applied as follows: The said Hall is to keep the same safely invested, and pay to said Robert Bramhall all the net income thereof, as often as received, taking his receipt therefor."

"Sixth. I give, devise and bequeath one eighth part of all the remainder of my estate, real and personal, to each of my two sons, William T. Bramhall and Thomas M. Bramhall, their heirs and assigns forever.

"Seventh. I give, devise and bequeath the other six eighth parts of all said remainder of my estate to the said Andrew T. Hall, in trust, to manage and take care of the same, keeping it properly invested, and pay over the income as follows: the income of one of said eighth parts thereof to each of my two sons William T. Bramhall and Thomas M. Bramhall, during their lives; and the income of two of said eighth parts to each of my two daughters, Elizabeth S. Bramhall and Maria S. Bramhall, during their lives; the income to be paid to my said daughters is to be paid upon their individual receipts respectively; or if they or either of them so elect, it may be retained by said Hall and invested for their or her benefit. The amount of all debts which at the time of my decease shall be due to me from my sons William T. Bramhall and Thomas M. Bramhall, whether by note or book account, is to be deducted from their respective shares, one half from the proportion given to them absolutely, and one half from the portion given in trust.

"Eighth. Upon the decease of any of said children, William T., Thomas M., Elizabeth S., and Maria S., I give, devise and bequeath that portion of my estate, of which the income is above given to him or her for life, to his or her children, their heirs and assigns forever. And if either of them shall die leaving no child, or more remote descendant, then living, I give, devise and bequeath such share to the others of said four children, in equal shares, their heirs and assigns forever."

The codicil, dated July 20, 1866, was as follows:

"First codicil to my will, dated the seventeenth day of April, 1865: To wit, fourth of said will, wherein I give and bequeath to Andrew T. Hall, in trust, ten thousand dollars for the benefit of my son Robert Bramhall during his life, &c., this part of said will I now revoke and declare void; and instead thereof I give and bequeath to the said Andrew T. Hall, in trust for my son Robert Bramhall, during his life, an equal portion of all such property as I may die possessed of, as my other children may be entitled to under said will above named. The said Andrew T. Hall is to keep the same safely invested, and to pay to said Robert Bramhall such portion of net income thereof as often as received, taking his receipt for the same, or such sum or sums as may be necessary support and maintenance (respectably.) Should the income of the property coming to said Robert exceed his reasonable necessities and requirements, the excess, if any, I direct and request the said Hall to invest in some good securities, say state of Massachusetts or city of Boston securities."

The facts of the case and the instructions requested appear in the opinion. Hearing before Endicott, J., who reserved the case for the consideration of the full court.

Sum advanced to Elizabeth deducted as a debt from the principal of her share, held in trust for her benefit under the will.

J. Willard, for the plaintiff.

W. G. Russell, for William T. Bramhall.

C. H. Hurd, for Robert Bramhall.

G. Putnam, Jr., for the daughter Maria.

H. E. Ware, for the daughter Elizabeth.

C. H. Hill, for the grandchildren.

Endicott, J. Devens & Lord, JJ., absent.

OPINION

Endicott, J.

Before considering the several requests for instructions propounded by the bill, it is necessary to determine how far the sixth, seventh and eighth clauses of the will are affected by the provisions of the codicil.

When the testator made the will, April 18, 1865, he had five children living, who were his only heirs at law, William, Thomas, Robert, Elizabeth and Maria. Thomas died before the testator, and after the codicil was made; the others survived him. By the fourth clause of the will, the testator gave twelve thousand dollars to a trustee to hold in trust for the benefit of Robert, and the income to be paid to him during his life, upon his receipt. By the sixth clause, he gave one eighth part of the remainder of his estate to each of his sons William and Thomas absolutely. By the seventh clause, he gave the other six eighths to a trustee to hold in trust, and to pay over the income of one eighth to William and Thomas respectively, and of two eighths to Elizabeth and Maria respectively, during their lives. The seventh clause also contains a provision that the amount of all debts due him, on his death, from William and Thomas, by note or book account, should be deducted from their respective shares, one half from the portion given outright, and the other half from the portion given in trust. At this time, William, Thomas and Robert were largely indebted to him for money lent to them to assist them in business and for other purposes, as appears by his books, which was charged to them as a debt, and on which an interest account was kept. He also, at that time, held notes of William and Thomas then overdue. He thus endeavored to make the shares of the remainder of his property equal, by charging to William and Thomas the debts they owed him, so that his four children, who were to share the remainder, should, on the final distribution and settlement of the estate, have each received the same amount. Robert not being entitled to a share in the remainder, but being provided for by a separate trust fund, under which he takes less than a share in the remainder would be, the testator did not require his loan to be paid; and he then had no charges against his two daughters. By the eighth clause, he gave, upon the death of William, Thomas, Elizabeth or Maria that portion of his estate, the income of which was given to him or her for life, to his or her children. And, in the event that either should die without children or more remote descendants living, he gave "such share to the others of said four children" in equal parts absolutely.

Under these clauses, an equal division of the whole remainder of his property was evidently intended among these four children; the daughters taking only the income of their shares, and each son taking one half his share absolutely, and the income only of the other half. And the eighth clause, which is in fact and must be taken as part of the seventh, provides for the disposition of the share of each so held in trust upon his or her decease.

The codicil, dated July 20, 1866, makes a material change in this division. It is inartificially drawn, but the meaning and intention of the testator are apparent. It revokes the fourth clause, creating a trust for the sole benefit of Robert, and "instead thereof" gives to the same trustee named in the seventh clause, in trust for Robert during his life, "an equal portion of all such property as I may die possessed of, as my other children may be entitled to under said will above named." The income as received, or so much as is necessary for his support, the trustee is to pay over to Robert, on his receipt. And any excess of income not necessary for his support and maintenance, the trustee is to invest. He thus intended to give Robert the same as his other children. No provision is made in the codicil for the disposition of the principal after Robert's decease. In using the words "all such property as I may die possessed of," in this connection, he undoubtedly refers to the remainder of his property disposed of in the sixth and seventh clauses, as his other children are entitled to no other property under the will. As the share Robert is to take under the codicil is in trust, it is equally clear that he did not intend that Robert should take any portion of that share absolutely, as provided for William and Thomas in the sixth clause; and as each of the other four children is to receive an equal share in amount of the remainder, though the two sons take a part of their shares absolutely, Robert is entitled to an equal share of the remainder with the others, which must be held in trust. And the effect of the codicil is to insert Robert's name in the seventh clause, and to give him the income of a share in the remainder equal to that of his sisters. This cuts down the shares of the other brothers and sisters, and, taking the will and codicil together, William and Thomas each take one tenth of the remainder absolutely, and the income of the remaining eight tenths is to be paid over by the trustee, one tenth to William and Thomas, and two tenths each to Elizabeth, Maria and Robert.

Robert being thus introduced into the seventh clause, and entitled to an equal share in the remainder, the same as the other children, it follows that he must take his share subject to the provisions therein contained as to the other children, in those respects wherein he stands on the same footing with them or either of them. As he was indebted to the...