Ingersoll v. Hopkins

• Decision Date: 28 February 1898
• Citation: 49 N.E. 623,170 Mass. 401
• Parties: INGERSOLL et al. v. HOPKINS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 401

49 N.E. 623

INGERSOLL et al. v. HOPKINS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 28, 1898

COUNSEL

W.H.H. Emmons and Wilfred Bolster, for appellants.

Alfred Heminway and Edward B. Adams, for appellees.

OPINION

FIELD C.J.

The will of Charles D. Ingersoll, of Boston, was executed on October 20, 1891, and in it he gave all his property to Mary Alice Payson, of said Boston, "single woman," and appointed her one of the executors, and requested that the executors "be required to give no sureties on their official bonds." It appears from the testimony admitted by the justice who reported the case to this court that the testator and Miss Payson were married on October 19, 1892 that the testator died on September 28, 1896; that prior to the time when the will was executed the testator and Miss Payson had mutually promised to marry each other; that the contract of marriage remained in force from the time of the engagement until the marriage, and that she lived with him as his wife from the time of her marriage until his death. From this evidence, in connection with the will, the presiding justice found as matter of fact, so far as he properly could, that it appears from the will itself, "by fair inference from its provisions as applied to the parties and the subjects to which it relates, that the will was made in contemplation of the marriage that was subsequently solemnized," and he affirmed the decree of the probate court allowing the will. The question of law in this case depends upon the construction to be given to St.1892, c. 118 of which the first section is as follows: "The marriage of any person shall act as a revocation of any will made by such person previous to such marriage, unless it shall appear from the will itself that the will was made in contemplation of such marriage, or unless and except so far as the will is made in exercise of a power of appointment and the estate thereby appointed would not, in default of appointment, pass to the persons that would have been entitled to the same if it had been the testator's own estate and he or she had died without disposing of it by will." It is manifest we think, that from the will itself, considered independently of the testimony admitted by the presiding justice, it does not appear that the will was made in contemplation of marriage with Miss Payson. It is impossible to hold, in every case where a testator, by his will, gives property, or all his property, to a woman who is unmarried, and makes her his executrix, that it appears from this that at the time when he made the will he contemplated marrying her, and made his will in contemplation of such marriage. It does not appear that there was any dispute or uncertainty as to the Mary Alice Payson intended, or that any evidence was necessary to identify her or the estate which was devised and bequeathed to her. The evidence was admitted to show another fact existing at the time when the will was made, namely, that at that time the testator was under a contract of marriage with her; and then, by considering this fact in connection with the provisions of the will, the presiding justice drew the inference that the will was made in contemplation of the marriage with her which afterwards took place. It was, in effect, conceded by both sides that, although the will was made before St.1892, c. 118, took effect, yet, as the marriage took place after the statute took effect, the statute was applicable to the case. See Swan v. Sayles, 165 Mass. 177, 42 N.E. 570.

The counsel for the appellees cite the decisions of this court upon the construction of what is now Pub.St. c. 127, § 21 which section is as follows: "When a testator omits to provide in his will for any of his children or for the issue of a deceased child, they shall take the same share of his estate that they would have been entitled to if he had died intestate, unless they have been provided for by the testator in his lifetime, or unless it appears that the omission was intentional and not occasioned by accident or mistake." Under the statutory provision which now constitutes this section, the court held that parol evidence is...