Leonard v. Haworth

• Citation: 51 N.E. 7,171 Mass. 496
• Parties: LEONARD v. HAWORTH.
• Decision Date: 24 June 1898
• Court: United States State Supreme Judicial Court of Massachusetts

171 Mass. 496

51 N.E. 7

LEONARD v. HAWORTH.

Supreme Judicial Court of Massachusetts, Middlesex.

June 24, 1898

COUNSEL

W.H. Anderson for plaintiff.

F.A Fisher, for defendant.

OPINION

BARKER J.

The questions for decision are whether the testator's estate is to be held in trust; whether a part of his estate shall be retained to meet and discharge the funeral expenses of his widow, and to place a suitable tablet at the head of her grave, notwithstanding the fact that she has waived the provisions of his will; and whether, under the direction that "when my wife has deceased and her funeral expenses have been paid, and all the provisions named in this will have been carried out, I will what is left of my estate be divided among my nearest of kin," those who were the testator's nearest of kin at his death take a vested remainder, or those who will be his nearest of kin at the time of distribution will take under a remainder now contingent. The testator died in his seventy-fourth year, and the will was written by himself, in the belief that he had not long to live, a few months before his death. His property consisted of a share of stock worth $1,175, a gold watch worth $75, mechanic's tools worth $25, other personalty worth $100, and three parcels of real estate,--his home, and one single and one double tenement house,--the whole value of the real estate being $12,370. His debts did not exceed $200. The language of his will indicates that he was somewhat illiterate, and that he had no exact knowledge of the meaning of legal terms. His wife was 72 years of age and without issue. When the will was made and at the testator's death his only next of kin were Clarissa W. Haworth, a sister, the wife of Thomas Haworth, then in her seventy-fourth year, and then and now without living issue, and Sylvester B. Leonard a brother, the executor, then in his seventy-first year, and who had two unmarried daughters then of the respective ages of 40 and 35 years. The sister had for many years occupied the tenement, the use of which was given to her for life, paying rent therefor to the testator.

The widow having waived the provisions of the will, real estate to the amount of $5,000 has been assigned to her under the statute, and this amount is in excess of the value of either of the three parcels of the testator's real estate. She has been given an allowance of $400, and the testator's personalty is insufficient by more than $300 for the payment of the allowance, the charges of administration, the debts, and the legacies. The cemetery lot wherein the testator is buried was the property of his mother when she died intestate, her only heirs at law having been the testator and his brother and sister. The widow is unwilling that her funeral expenses shall be paid, or a tablet be placed at the head of her grave, by the executor of the testator, or paid for out of his estate.

1. Whether the remainder is vested or contingent, the estate cannot be finally settled while the widow and the sister both live. While the will contains no devise or bequest to any one as a trustee of the testator's estate, it does nominate and appoint his brother to be executor and trustee. The ultimate division which the testator contemplated was not to be made until all the provisions of his will had been carried out, and this would require action on the part of an executor or trustee after the death of the survivor of his widow and his sister. We think, therefore, that the word "trustee" was not used merely as a synonym for executor, and that the brother may be appointed as trustee.

2. While there is no explicit provision that the funeral expenses of the testator's widow shall be paid out of his estate, we think it sufficiently appears to have been his intention that they should be so paid, and that she should be buried in the lot owned by himself and his brother and sister, and by the side of her deceased daughter, and that a suitable tablet should be placed at the head of his widow's grave at the expense of his estate. If his widow's present intentions shall continue, it may be impossible for the executor or trustee to carry out these intentions of the testator. But they are not merely provisions made for her in his will. They are directions as to the disposal...