Levine v. Finkelstein

• Decision Date: 01 December 1942
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: ROSE LEVINE v. HERBERT J. FINKELSTEIN & others, executors and trustees.

312 Mass. 483

45 N.E.2d 383

ROSE LEVINE v. HERBERT J. FINKELSTEIN & others, executors and trustees.

Supreme Judicial Court of Massachusetts, Suffolk.

December 1, 1942

November 9, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Devise and Legacy Construction of particular phrase.

A clause in a will directing payment of a certain sum to a niece of the testator "on the occasion of her marriage if such marriage will take place within five years after my decease and will be approved by" certain persons, did not entitle the niece to payment where it appeared that she was married during the testator's life after the making of the will, although the marriage was approved by him.

PETITION, filed in the Probate Court for the county of Suffolk on August 20 1941.

The case was heard by Mahoney, J.

J. L. Yesley, (A.

B. Lourie with him,) for the respondents.

H. C. Freedman, for the petitioner.

FIELD, C.J. Samuel Finkelstein, late of Boston, died February 16, 1940, leaving a will executed January 23, 1930, which was duly allowed. By article 4 of the will he gave various legacies, including a legacy of $1,000 to his niece Rose Leavitt. By article 5 of the will he gave the residue of his estate to trustees for certain purposes, among them, by clause 4, "To pay to my said niece Rose Leavitt the sum of one thousand dollars in addition to the bequest hereinbefore provided on the occasion of her marriage if such marriage will take place within five years after my decease and will be approved by my son in law Jacob B. Pelton and my said son Isadore A. Finkelstein or the survivor of them, or in case both of them shall have previously deceased then upon the approval of any two of my children."

Rose Levine, formerly Rose Leavitt, brought this petition in the Probate Court, against the executors and trustees under the will of the testator, to compel them to pay to her the sum of $1,000 referred to in clause 4 of article 5 of the will, with interest. The case was heard upon the petition and answer and an "agreed statement of facts." A decree was entered ordering the respondents to pay to the petitioner the sum of $1,000 with interest, and the respondents appealed to this court.

The parties agreed upon the following facts: "The petitioner, a niece of the testator, lived with the testator from March 1923 to the date of her marriage on January 10, 1933 to one Herman E. Levine, her parents having deceased. The petitioner is now living with the said Herman E. Levine her husband. The testator was present at the wedding of the petitioner on January 10, 1933, approved of it and the expenses of the petitioner's wedding and a wedding gift to the petitioner consisting of a bedroom set altogether costing about six hundred dollars, were paid for by the testator and two of his sons. There are sufficient assets in the hands of the respondents as trustees to pay the said legacy provided in clause 4 of Article 5 of the will." The legacy given to the petitioner by article 4 of the will has been paid to her.

The decree of the Probate Court was based upon an erroneous interpretation of clause 4 of article 5 of the will. That clause provided for a payment to the petitioner "on the occasion of her marriage." We think that the language of the will discloses an intention on the part of the testator to provide for a gift to his niece in the nature of a wedding gift, that his dominant intention, as so disclosed, was that the $1,000 should be paid to his niece "on the occasion of her marriage," subject, however, to...