Dansereau v. Dansereau

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: Dansereau v. Dansereau, 318 Mass. 363, 61 N.E.2d 661 (Mass. 1945)
• Decision Date: 05 June 1945
• Parties: DANSEREAU v. DANSEREAU et al.

318 Mass. 363

61 N.E.2d 661

DANSEREAU

v.DANSEREAU et al.

Supreme Judicial Court of Massachusetts, Middlesex.

June 5, 1945.

Petition by Corrine G. Dansereau, administratrix, against Corinne G. Dansereau and others for instructions as to the distribution of an estate under a will. On appeal and report.

Decree affirmed.Appeal and Report from Probate Court, Middlesex County; J. W. monahan, judge.

Before FIELD, C. J., and LUMMUS, QUA, RONAN, and WILKINS, JJ.

E. McPartlin, of Boston, for Corrine G. Dansereau.

F. K. Rice, of Boston, for guardian ad litem and others.

E. S. Tyler, of Watertown, for Corrine A. Balch.

LUMMUS, Justice.

In this petition by an administratrix with the will annexed for instructions as to the distribution of the estate of the testatrix, the administratrix in her personal capacity as sole heir at law and statutory distributee was properly made a respondent. Bemis v. Converse, 246 Mass. 131, 135, 140 N.E. 686;Dockray v. O'Leary, 286 Mass. 589, 591, 190 N.E. 798;Johnson v. Johnson, 300 Mass. 24, 25, 13 N.E.2d 788;Jones v. Gane, 205 Mass. 37, 40, 91 N.E. 129. Compare In re Batchelder, petitioner, 147 Mass. 465, 471, 18 N.E. 225. See also St. Botolph Club, Inc., v. Brookline Trust Co., 292 Mass. 430, 432, 198 N.E. 903;Smith v. Stratton, 302 Mass. 17, 19, 18 N.E.2d 328; Williston, Contracts, Rev.Ed.1936, § 18.

The will to be construed is that of Alice D. Perault, who died on November 29, 1942. The will was unskilfully drawn. Uncertainty as to its construction arises mainly because of the fact that Josephine Perault, a sister of the testatrix, died four years before the death of the testatrix.

The first paragraph of the will was as follows: ‘If my sister Josephine Perault shall survive me, I give her all of my estate, real and personal, wherever situated, but in trust nevertheless, the Harvard Trust Company, a banking corporation of Cambridge, Mass. to be the trustee, and the said trustee is hereby directed to pay the income which is received on my said estate to the said Josephine Perault during her lifetime.’ Then follow provisions for the continuance of the trust until the youngest child of Corinne G. Dansereau, Marcelline A. Dansereau, who is now only seventeen, shall attain the age of twenty-one years, at which time the entire estate is to be divided equally between Corinne G. Dansereau and her children.

Corrine G. Dansereau contends that all the testamentary dispositions were conditional upon the survival of the testatrix by Josephine Perault, and that since there was no such survival the entire estate should be distributed to her under the laws of intestacy. Damon v. Damon, 8 Allen, 192.Bobblis v. Cupol, 297 Mass. 164, 7 N.E.2d 440. Her children contend that they are entitled to share in a distribution to be made when Marcelline A. Dansereau shall attain the age of twenty-one years.

It is always improbable that a testator who goes to the trouble of making a will intends that in a contingency not unlikely to happen his property is to be distributed under the laws of intestacy. The natural inference is that a testator intends to dispose of his property completely by the will. Old Colony Trust Co. v. Treadwell, 312 Mass. 214, 216, 43 N.E.2d 777;O'Neill v. Connelly, 312 Mass. 508, 511, 45 N.E.2d 466;Robertson v. Robertson, 313 Mass. 520, 525, 48 N.E.2d 29;Holmes v. Welch, 314 Mass. 106, 109, 49 N.E.2d 461. And since a will speaks ‘the language of the testator at the time of his death’ (Gray v. Sherman, 5 Allen, 198, 199), it is particularly unlikely that the testatrix in this case would leave as her last will a document that four years before her death had ceased to have meaning or effect if the construction contended for by Corinne G. Dansereau were to be adopted.

These improbabilities would cease to exist if the conditional clause that begins the first paragraph, ‘If my sister Josephine Perault shall survive me,’ should be read at the end of that paragraph instead of at its beginning. By that transposition the whole will would become complete, natural and comparatively plain. It is settled that such a transposition of clauses may be made where upon the whole will that appears to accord with...