Mahoney v. Grainger

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: RUGG
• Citation: Mahoney v. Grainger, 283 Mass. 189, 186 N.E. 86 (Mass. 1933)
• Decision Date: 26 May 1933
• Parties: MAHONEY et al. v. GRAINGER et al.

283 Mass. 189

186 N.E. 86

MAHONEY et al.

v.GRAINGER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 26, 1933.

Appeal from Probate Court, Suffolk County; Arthur W. Dolan, Judge.

Petition by Mary T. Mahoney and others, opposed by Andrew Grainger and another, executors, for distribution to petitioners as heirs at law of Helen A. Sullivan, deceased. From decree dismissing petition, petitioners appeal.

Decree affirmed.

J. W. Mahoney, C. H. Cronin and A. L. Hyland, all of Boston, for Mary T. Mahoney and others.

J. W. Burke, W. E. Collins, and J. K. Collins, all of Boston, for Frances Hawkes Greene.

RUGG, Chief Justice.

This is an appeal from a decree of a probate court denying a petition for distribution of a legacy under the will of Helen A. Sullivan among her first cousins who are contended to be her heirs at law. The residuary clause was as follows: ‘All the rest and residue of my estate, both real and personal property, I give, demise and bequeath to my heirs at law living at the time of my decease, absolutely; to be divided among them equally, share and share alike; provided, however, that the real property which I own at my decease shall not be sold or disposed of until five (5) years after my decease, unless there is not sufficient personal property at the time of my decease to pay my specific legatees; in which case said real property may be sold. The income from said real property during said five (5) years is to be distributed among my heirs at law as I have directed.’

The trial judge made a report of the material facts in substance as follows: The sole heir at law of the testatrix at the time of her death was her maternal aunt, Frances Hawkes Greene, who is still living and who was named in the petition for probate of her will. The will was duly proved and allowed on October 8, 1931, and letters testamentary issued accordingly. The testatrix was a single woman about sixty-four years of age, and had been a school teacher. She always maintained her own home but her relations with her aunt who was her sole heir and with several first cousins were cordial and friendly. In her will she gave general legacies in considerable sums to two of her first cousins. About ten days before her death the testatrix sent for an attorney who found her sick but intelligent about the subjects of their conversation. She told the attorney she wanted to make a will. She gave him instructions as to general pecuniary legacies. In response to the questions ‘Whom do you want to leave the rest of your property to? Who are your nearest relations?’ she replied ‘I've got about twenty-five first cousins * * * let them share it equally.’ The attorney then drafted the will and read it to the testatrix and it was executed by her.

The trial judge ruled that statements of the testatrix ‘were admissible only in so far as they tended to give evidence of the material circumstances surrounding the testatrix at the time of the execution of the will; that the words heirs at law were words in common use, susceptible of application to one or many; that when applied to the special circumstances of this case that the testatrix had but one heir, notwithstanding the added words ‘to be divided among them equally, share and share alike,’ there was no latent ambiguity or equivocation in the will itself which would permit the introduction of the statements of the testatrix to prove her testamentary intention.' Certain first cousins have appealed from the decree dismissing the petition for distribution to them.

There is no doubt as to the meaning of the words ‘heirs at law living at the time of my decease’ as used in the will. Confessedly they refer alone to the aunt of the testatrix and do not include her cousins. Gilman v....