Hanley v. Fernell

• Decision Date: 10 January 1934
• Docket Number: No. 1176.,1176.
• Citation: 170 A. 88
• Parties: HANLEY v. FERNELL et al.
• Court: Rhode Island Supreme Court

170 A. 88

HANLEY

v. FERNELL et al.

No. 1176.

Supreme Court of Rhode Island.

Jan. 10, 1934.

Case Certified from Superior Court, Providence and Bristol Counties.

Bill for instructions by Frank L. Hanley, executor of the will of James L. Pettis, against Ethel May Fernell and others. Certified from superior court, under Gen. Laws 1923, c. 339, § 35.

Decree in accordance with opinion.

Daniel A. Colton, of Providence, for complainant.

Gardner, Moss & Haslam, Charles R. Haslam, and Harry A. Tuell, all of Providence, for respondent Church of the Messiah.

Comstock & Canning and Edward M. Brennan, all of Providence, for respondent Rhode Island Society for Prevention of Cruelty to Animals.

Charles A. Curran, of Providence, for respondents Fernell and others.

Adolph Gorman, of Providence, for respondents Winsor.

SWEENEY, Justice.

This bill in equity is brought by the executor of the will of James L. Pettis praying for the construction of certain clauses in his will and for instructions relative thereto. All persons interested in the questions have been made parties. Testimony was presented in the superior court relative to the issues raised by the pleadings. The case, being ready for hearing for final decree, was certified to this court as required by section 4968 (c. 339, § 35) General Laws 1923.

Mr. Pettis died October 11, 1925, leaving a will which was executed August 5, 1924. The will disposed of all his estate by twenty-three paragraphs, the last being a gift of his residuary estate to the Rhode Island Hospital and to Saint Joseph's Hospital.

Most of Mr. Pettis' estate consisted of deposits in savings banks and trust companies. After the execution of his will, Mr. Pettis withdrew or transferred all the money due him on the deposits mentioned in six paragraphs. The question presented is how these withdrawals or transfers by Mr. Pettis affect the legatees mentioned in these paragraphs.

Testimony of the attorney who drew the will as to statements made by the testator as to his intention in regard to his bequests has been offered by some of the interested parties. This testimony is inadmissible, as there is no latent ambiguity in the will. The admission of such testimony would permit wills to be made by parol and would, in effect, repeal the statute (Gen. Laws 1923, c. 298, § 13) requiring them to be in writing. Lewis v. Douglass, 14 R. I. 604; Rhode island Hospital Trust Co. v. Bradley, 41 R. I. 174, 103 A. 486; Wooley v. Hays, 285 Mo. 566, 226 S. W. 842, 16 A. L. R. 1.

The legatees' rights are to be determined by the character of their bequests; that is, whether they are general, specific, or demonstrative. A "general legacy" is one which is payable out of the general assets of the testator. A legacy is "specific" when it is the testator's intention that the legatee shall have the very thing bequeathed and not a corresponding amount in value. A "demonstrative legacy" partakes of the nature of both a general and a specific legacy. It is a gift of money payable out of a particular fund in such a way as to evince the testator's intent not to relieve his general estate from payment of the legacy in case the particular fund fails. The distinction between demonstrative legacies and specific legacies is that in the former the primary intention is that the legacy be paid in any "event, even though the designated source fails, while in the latter the main intention is that the legacy be paid by the delivery of the Identical thing, and that thing only, and in the event that at the time of the testator's death such thing-is no longer in existence, the legacy will not be paid out of his general assets. Lewis v. Douglass, supra'; Dean v. Rounds, 18 R. I. 436, 27 A. 515, 28 A. 802; Gardner v. Viall, 36 R. I. 436, 90 A. 760; 28 R. C. L. 289-292: 40 Cyc. 1870; 73 A. L. R. 1252. In determining whether a legacy is specific or demonstrative, the intention of the testator is of primary importance, and in ascertaining his intent the court may consider not only the particular bequest in question, but the language of the entire will, together with the circumstances surrounding the testator at the time it was executed, including his relation to the legatees. Gardner v. Viall, supra; Sherman v. Riley, 43 R. I. 202, 110 A. 629; Connly v. McElroy, 46 R. I. 93, 125 A. 206; 28 R. C. L. 293; 40 Cyc. 1871.

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