Lord v. Smith

• Decision Date: 27 February 1936
• Citation: 293 Mass. 555,200 N.E. 547
• Parties: LORD et al. v. SMITH et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 555

200 N.E. 547

LORD et al.

v.SMITH et al.

Supreme Judicial Court of Massachusetts, Essex.

Feb. 27, 1936.

Report from Supreme Judicial Court, Essex County.

Suit in equity by Emma C. Lord and another against Alphonso H. Smith and others. On report without decision by a single justice in the Supreme Judicial Court.

Decree in accordance with opinion.R. Wait, and B. Aldrich, both of Boston, for plaintiffs.

W. S. Downey, of New Bedford, for defendant Smith.

J. A. Boyle, pro se.

CROSBY, Justice.

This is a bill in equity which was reserved and reported by a justice of this court for determination of the full court, under G.L.(Ter.Ed.) c. 231, § 111. The purpose of the bill is to settle the title to a certain parcel of real estate situated in Vineyard Haven in this commonwealth. An agreement between the parties is printed in and made a part of the record.

It appears that one David Smith owned a certain lot of land with a dwelling house thereon in the village of Vineyard Haven (formerly the town of Tisbury) in this commonwealth, and that he occupied the premises as his residence until his death; title thereto then passed to his daughter, Eliza C. Lord. Thereafter the premises were occupied as a residence by her and her husband, Edward C. Lord. She died testate and her will was duly admitted to probate on March 7, 1924. It contained among others the following clauses: ‘Second: I give and devise the premises now occupied by me as a residence in the village of Vineyard Haven, and which was formerly the residence of my father, David Smith, unto my husband Edward C. Lord, for and during the term of his natural life with full power to sell, mortgage, exchange, or otherwise dispose of the same and to give good title thereto to the said premises, and to use and dispose of the proceeds therefrom in any manner he may choose for his own comfort, pleasure, and benefit. But in the event of the death of my husband without having sold, mortgaged, exchanged, or otherwise disposed of the said premises, I hereby give and devise the same unto Alphonso H. Smith of New Bedford, Massachusetts, and in the event of his death previous to my own demise, to the legal heirs of said Smith then living. Third. I give and bequeath all my household goods and furniture unto my husband, Edward C. Lord in the same manner provided in the clause above, and in the event of his death without having disposed of the same, I give and bequeath the said goods and furniture unto Alphonso H. Smith, and in the event of his death previous to my own demise, to the legal heirs of said Smith then living. Fourth: I give and bequeath two and one-half shares (2 1/2) of the Capital Stock of the Vineyard Haven Wharf Co., registered on the books of the company in my name unto my husband Edward C. Lord, to enjoy the income therefrom during the term of his natural life, and at his death or in the event of the death of my husband previous to my own demise, I give and bequeath the said stock unto Millicent C. Smith of New Bedford, Massachusetts, daughter of Alphonso H. Smith. Fifth: All the Rest and Residue of my estate of which I may die seized or possessed or entitled to be the same, real, personal, or mixed I give, devise, and bequeath unto my husband Edward C. Lord.’

Eliza C. Lord was survived by her husband Edward C. Lord, by the defendant Alphonso H. Smith and by Millicent C. Smith. Thereafter, under date of March 28, 1924, Edward C. Lord executed a mortgage to the Martha's Vineyard National Bank for the sum of $2,500 upon the real estate above referred to. The note and mortgage were signed ‘Edward C. Lord.’ The property so mortgaged had at that time, and still has, a value of not less than $6,500. The mortgage was recorded; it is outstanding, and the principal of the note is overdue, and has not been paid in full. The note was transferred by the bank to James A. Boyle, one of the defendants, under date of May 17, 1935, and immediately thereafter he made an entry upon the property for the purpose of foreclosing the mortgage under G.L. (Ter.Ed.) c. 244, § 1. Edward C. Lord duly qualified as executor of the will of Eliza C. Lord, and his first account as executor for the period March 7, 1924, to March 27, 1925, was allowed by the probate court on June 2, 1925. Subsequent to April 1, 1924, Edward C. Lord married the plaintiff Emma C. Lord and resided with her on the property above referred to until his death on October 6, 1934. He died intestate, without issue, and left as his sole heirs and next of kin the plaintiffs, Emma C. Lord (his widow), J. Arthur Lord (his brother), and Mary Cheever Lord (his sister). His estate has not been represented as insolvent. The inventory of his estate contains the following statement in the schedule showing real estate: ‘Homestead not his as he did not exercise his right to sell during his life.’

On April 1, 1924, Edward C. Lord opened a bank account in the Martha's Vineyard National Bank in the name ‘Est. Eliza C. Lord. E. C. Lord Exec.’ The first deposit of $2,424.50 therein was the proceeds of the mortgage. The account shows checks drawn in the same amount as shown in Schedule B of the executor's account of Edward C. Lord, above referred to, except items 8, 20 and 25 which were cashed at approximately the dates shown in the schedule. In addition two checks (for $14.74 and $193.73 respectively) appear in the transcript of checks which aggregate the amount of item 8 of Schedule B.

Subsequent to the death of Edward C. Lord the defendant Alphonso H. Smith entered upon the premises claiming that title thereto had vested in him under the provisions of the will of Eliza C. Lord. Thereafter the real property of Smith was attached by the defendants Cromwell and Robinson in an action of law which they had pending against him. Judgment was entered in that action in favor of Cromwell and Robinson, and execution issued to them in the sum of $1,281.74. Cromwell and Robinson delivered the execution to the defendant Dexter, who is the sheriff of the county of Dukes county. The execution is held by the sheriff and has not been satisfied. Cromwell and Robinson propose to sell the property as that of Smith in accordance with G.L.(Ter.Ed.) c. 236, § 26. This bill is brought to restrain the sale, and to declare that the plaintiffs are the heirs of Edward C. Lord, and that upon payment of the amount due on the mortgage by the plaintiffs to the defendant Boyle he be ordered to discharge the mortgage.

It was said in Hull v. Adams, 286 Mass. 329, at page 333, 190 N.E. 510, 512: ‘The familiar rule to be followed in the interpretation of wills is that the intent of the testator is to be gathered from all the words used, construed according to the approved usage of the language read in the light of all material circumstances, and then effect is to be given to that intent unless prevented by some rule of law.’ It is plain that the husband of the testatrix was given a life estate in the real estate, and in the household goods and furniture, with power to dispose of them during his life. Harris v. Knapp, 21 Pick. 412;Ladd v. Chase, 155 Mass. 417, 29 N.E. 637;Dana v. Dana, 185 Mass. 156, 70 N.E. 49;Reed v. Reed, 194 Mass. 216, 217, 80 N.E. 219;Griffin v. Kitchen, 225 Mass. 331, 114 N.E. 431;Homans v. Foster, 232 Mass. 4, 121 N.E. 417;Merchants' Trust Co. v. Russell, 260 Mass. 162, 164, 157 N.E. 338;Bramley v. White, 281 Mass. 343, 348, 183 N.E. 761;Jernegan v. Marshall (Mass.) 195 N.E. 117. He was also to receive the income from certain shares of stock for life, and all the rest of the estate was bequeathed to him absolutely. The provisions of the will make it plain that the testatrix intended that her husband should be the recipient of her bounty, and she desired that he should have the complete use and enjoyment of her property during his lifetime. After making provision for him the next persons she desired to share in her estate were Alphonso H. Smith, her relative, his daughter Millicent, and his legal heirs. It is apparent from causes two and three of the will that the testatrix contemplated that there might possibly be a remainder with respect to the property mentioned...