Jacobs v. Whitney

• Decision Date: 17 May 1910
• Parties: JACOBS v. WHITNEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

205 Mass. 477

91 N.E. 1009

JACOBS v. WHITNEY.

Supreme Judicial Court of Massachusetts, Middlesex.

May 17, 1910

COUNSEL

Everett W. Crawford, for petitioner.

John C Gray and Sumner Robinson, for respondent.

OPINION

MORTON J.

This is a petition for the partition of land in Winchester of which one Asa Whitney died seised in fee simple in 1873. The question in the case relates to the construction of the sixth article of his will. At the time of his death he was domiciled in Philadelphia and the will was drawn and executed there. It was duly admitted to probate in Philadelphia in 1874, and subsequently in 1875 was admitted to probate as a foreign will in the probate court for Middlesex county in this state, and the trustees named in the will were duly appointed and qualified by that court. The justice of the superior court by whom the case was heard ruled and found subject to the respondent's exceptions, that the petitioner was entitled to partition, and at the request of the respondent reported the case to this court. If his rulings and findings are correct, judgment is to be entered that partition be made; otherwise the case is to be disposed of as law and justice may require.

By the sixth clause of his will the testator gave and devised to his sons George, John R. and James S. Whitney and the survivors and survivor of them, all his real estate and property in Winchester, 'in trust nevertheless * * * at their discretion to permit my said brother Joel Whitney to use, occupy and enjoy the said real estate for and during all the term of his natural life. * * * In case Esther Whitney, wife of my said brother Joel, shall survive her husband, my will is and I direct that one-third of the clear yearly value or rental of said real estate * * * shall be paid half-yearly to the said Esther Whitney, for and during all the term of her natural life for her own use absolutely, and the remaining two-thirds of said rent * * * shall be divided among the children of my said brother in the proportion of three-eighths thereof to his son Arthur E. Whitney and five-eighths thereof equally to his other children then living during the lifetime of their mother, and immediately after the decease of said Joel Whitney and wife I direct that the said real estate * * * mentioned in this article shall be vested in the children of the said Joel Whitney, in the same proportions as above mentioned as to the income thereof. If any of the said children be then deceased, under lawful age and without issue, the surviving children of my said brother to take the share of said decedent in the same proportions, but if either of the said children be then deceased leaving lawful issue him or her surviving, such issue shall take and if more than one divide equally among them, the part or share his, her or their deceased parent would have taken if living.'

Joel and his wife were both living at the death of the testator and had six children then living. Of these Evelyn died during the lifetime of her father and mother and of her brother, Fred M. Whitney, upwards of 21, intestate and without issue. Fred M. Whitney, under whom the petitioner claims title, died in 1890, during the lifetime of his father and mother, also intestate and without issue, and of more than lawful age. In August, 1889, he was adjudged insolvent by the court of insolvency of Suffolk county, and all his interest in the property in question passed to his assignee in insolvency from whom it came by mesne conveyance to the petitioner.

The question is whether, as contended by the petitioner, the interest which Fred M. Whitney took under the will of Asa Whitney was a vested remainder, or whether, as contended by the respondent, it was contingent on his surviving his father and mother, or, what amounts to the same thing so far as the result in this case is concerned, whether if vested, it was subject to be divested by his death without issue during the lifetime of his parents. We do not understand the respondent to contend that if vested it did not pass to the petitioner, or that the petitioner is not entitled in that event to partition.

The court ruled as requested by the petitioner that the will should be construed according to the law of Pennsylvania, as it was interpreted at the time and place it was drawn and executed; and so far as the question was one of fact the court must be taken by its ruling and finding that the petitioner was entitled to partition to have found that the law of Pennsylvania was as contended by the petitioner, and that he remainder was vested and not contingent. We assume in favor of the respondent but without so deciding, that the form of the report is such that all questions in relation to the proper construction of the will, however arising, are open to him. See McCurdy v. McCallum, 186 Mass. 464, 72 N.E. 75.

The testator having been domiciled in Philadelphia when the will was drawn and executed, and dying there, the will must be interpreted as it would be interpreted there, unless the circumstances under which it was executed or the nature of the will itself requires a different construction. Brandeis v. Atkins, 204 Mass. 471, 90 N.E. 861; McCurdy v. McCallum, 186 Mass. 464, 72 N.E. 75; In re Ferguson's Will, [1902] 1 Ch. 483; Ford v. Ford, 70 Wis. 19, 33 N.W. 188, 5 Am. St Rep. 117; Keith v. Eaton, 58 Kan. 732, 51 P. 271; Wharton, Conflict of Laws (3d Ed.) § 599a. This rule applies with full force and effect to personal property whereever situated. The construction and effect given to the will by the courts of the testator's domicile are everywhere recognized as binding. Brandeis v. Atkins, 204 Mass. 471, 90 N.E. 861; Emlin v. Wylie, 10 H. L. Cas. 1; In re Freeport, [1887] 36 Ch. D. 600. This is upon the theory that the situs of such property is supposed to be where the owner has his domicile, though for certain purposes, no doubt, the actual situation of the property may be taken into account. Frothingham v. Shaw, 175 Mass. 59, 55 N.E. 623, 78 Am. St. Rep. 475. With regard, however, to real property situated in another jurisdiction, the rule is different. While the will is presumed in the absence of anything to the contrary to have been drawn in accordance with the law of the testator's domicile and will be interpreted accordingly, its effect and validity in respect to the disposition of real property so situated or the creation of any interest therein will depend upon the lex rei sitae. Brandeis v. Atkins, supra; De Vaughn v. Hutchinson, 165 U.S. 566, 17 S.Ct. 461, 41 L.Ed. 827; Robertson v. Pickrell, 109 U.S. 608, 3 S.Ct. 407, 27 L.Ed. 1049; White v. Howard, 46 N.Y. 144; West v. Fitz, 109 Ill. 425; Ford v. Ford, supra; ...