McCurdy v. McCallum

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HAMMOND, J.
• Citation: McCurdy v. McCallum, 186 Mass. 464, 72 N.E. 75 (Mass. 1904)
• Decision Date: 18 October 1904
• Parties: McCURDY et al. v. McCALLUM et al.

186 Mass. 464

72 N.E. 75

McCURDY et al. v. McCALLUM et al.

Supreme Judicial Court of Massachusetts, Middlesex.

October 18, 1904

COUNSEL

Eaton, McKnight & Carver, for complainants.

Frank Gaylord Cook, for respondents.

OPINION

HAMMOND J.

The first question is whether the bequest made to Susan B McCallum in the fifth clause of the will of M. Jane McCallum is absolute or upon trust. Inasmuch as the testatrix was domiciled in Nova Scotia, the construction, meaning, and legal effect of the clause is to be determined by the law of that province, which it is agreed is the same as the law of England. While the report speaks of this question as one of the 'questions of law raised at the trial' before the superior court, yet, being a question as to the law of a foreign country, it is here one of fact, and the judge who signs the report speaks of his 'finding' with reference to it. While in this and other respects the language used in the report is somewhat conflicting, still we think it plain that the report submits to us this question as a question of fact to be decided upon the pleadings in connection with the agreed statement of facts, in the twelfth paragraph of which it is agreed that 'either party may refer * * * to the Reports of the Supreme Court of Nova Scotia, the Reports of the Supreme Court of Canada, and the Reports of any courts in England, as well as any English text-books on the subject.' The clause in question reads as follows: '5. To Susan McCallum wife of Hugh McCallum I devise and bequeath the sum of two thousand dollars ($2000.00) this amount is to be free from the control of her husband and her son Guy McCallum, and I request the said Susan McCallum at her death to give the same to her two daughters Vesta Vane McCallum and Marion McCallum, but the recipt of the said Susan McCallum for the said amount shall be a sufficient discharge to my executors therefor.' The question is as to the meaning of the word 'request.' Is the word used simply to make to Susan a suggestion which she is at liberty to disregard if she sees fit, or is it imperative? This question is to be decided in the light of the authorities upon the English law which have been cited by the respective counsel. From a perusal of these authorities it is manifest that while in the earlier cases there was a disposition to formulate general rules, and to give to a particular word or phrase the same meaning in one will as in another, sometimes even at the risk of defeating the real intention of the testator, the later cases, in trying to ascertain the true meaning of the will are inclined to give more consideration to the language of the whole will, and to the particular circumstances of each case. In England, as here, the cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law. A vigorous statement of the manner in which this rule is applied in England in recent cases is to be found in the following language of Lindley, L. J., in In re Hamilton [1895] 2 Ch. 370, 373: 'You must take the will which you have to construe and see what it means, and if you come to the conclusion that no trust was intended, you say so, although previous judges have said the contrary on some wills more or less similar to the one which you have to construe.' As to this very word 'request' it has been held in several cases (see Earle v. Earle, 5 Mod. 118, decided in 1820) that it was mandatory, and in several (see Hill v. Hill [1897] 1 Q. B. 483) that it was not. While it is true, as stated by Lord Esher in Hill v. Hill, that 'words of request in their ordinary meaning convey a mere request, and do not convey a legal obligation of any kind, either at law or in equity,' it is also true, as stated by Lindley, K. J., in In re Williams [1897] 2 Ch. Div. 12, that 'not only in wills, but in daily life, an expression may be imperative in its real meaning although couched in language which is not imperative in form'; and that 'a request is often a polite form of command.' In wills words have their ordinary signification, unless in the particular case there is something which leads to the conclusion that the testator used them in a different sense. At the...