Metcalf v. First Parish in Framingham

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: Gray C. J.
• Citation: Metcalf v. First Parish in Framingham, 128 Mass. 370 (Mass. 1880)
• Decision Date: 26 February 1880
• Parties: George P. Metcalf & another v. First Parish in Framingham & others

128 Mass. 370

George P. Metcalf & another v. First Parish in Framingham & others

Supreme Court of Massachusetts

February 26, 1880

Argued January 13, 1879

Middlesex. Bill in equity by the executors of the will of George Phipps, to obtain the instructions of the court. Hearing before Endicott, J., who reserved the case for the determination of the full court, in whose opinion it is stated.

Decree accordingly.

F. V Balch, for the charitable institutions, cited, upon the first question presented, White v. Winchester, 6 Pick. 48; Foote, appellant, 22 Pick. 299; Cuthbert v Cuthbert, 3 Yeates 486; Wallace v. Wallace, 3 Foster 149; Cogswell v. Cogswell, 2 Edw. Ch. 231; Ashton v. Ashton, Cas. temp. Talbot, 152; Partridge v Partridge, Cas. temp. Talbot, 226; Chester v. Urwick, 23 Beav. 402; Jacques v. Chambers, 2 Collyer 435; Mullins v. Smith, 1 Dr. & Sm. 204; Miller v. Little, 2 Beav. 259; Bethune v. Kennedy, 1 Myl. & Cr. 114; Page v. Young, L. R. 19 Eq. 501; Kermode v. Macdonald, L. R. 3 Ch. 584.

E. R. Hoar, for the residuary devisees, upon the same question, cited also Stickney v. Davis, 16 Pick. 19; Robinson v. Addison, 2 Beav. 515; Tifft v. Porter, 4 Selden 516; Hayes v. Hayes, 1 Keen 97; Measure v. Carleton, 30 Beav. 538; Partridge v. Partridge, 1 Atk. 417, note; Sibley v. Perry, 7 Ves. 522; Webster v. Hale, 8 Ves. 410; Simmons v. Vallance, 4 Bro. C. C. 345; Bronsdon v. Winter, Amb. 57; 2 White & Tudor's Lead. Cas. in Eq. (5th ed.) 243, notes to Ashburner v. Macquire; Hinton v. Pinke, 1 P. Wms. 540, note.

Gray C. J. Colt & Soule, JJ., absent.

OPINION

Gray C. J.

The testator by the first article of his will be queaths to the First Parish in Framingham "fifty shares of the stock of the Pittsburg, Fort Wayne and Chicago Railroad Company," and also "the further sum of five thousand dollars." By the second article he bequeaths to the town of Framingham the sum of five hundred dollars and fifty shares of the stock of the same corporation. By the third article he bequeaths fifty shares of the same stock to the Association for the Relief of Aged and Indigent Females, and by the fourth article a like number of such shares to the Home for Aged Men, each of which is a corporation established in Boston. Then follow other bequests, six of which are of various amounts of stock in the same corporation, and the rest are pecuniary legacies, as to one of which, to his brother Gardiner, the testator directs that it shall be paid to the legatee in Dayton and Michigan Railroad bonds at par, "provided I should be in possession of the same at the time of my decease." The will concludes with a residuary devise and bequest of "all the rest, residue and remainder of my property of every kind, real, personal and mixed," to and for the benefit of his nephews and nieces, with a like direction for the payment in railroad bonds of the portions of the children of his brother Gardiner; and a clause empowering his executors to sell and convey all real estate and personal property, "excepting what I have hereinbefore disposed of." The bequests of stock in the Pittsburg, Fort Wayne and Chicago Railroad Company collectively include six hundred and ten shares; and it is agreed that the testator at the date of his will, and also at the time of his death, owned one thousand and ninety shares thereof.

The first question presented by the bill is whether the bequests of shares in the stock of the Pittsburg, Fort Wayne and Chicago Railroad Company are specific or general. This depends on the apparent intent of the testator. We are unanimously of opinion that his intention that these bequests should be specific clearly appears upon a view of the whole will, and especially from the following considerations: 1st. He not only makes many bequests of stock in this corporation and many pecuniary legacies to different persons and institutions, but in the first and in the second items of the will he makes to the same legatees bequests both of stock and of money, a fact much relied on by Lord Chancellor Cairns in Kermode v. Macdonald, L. R. 3 Ch. 584, as showing that a legacy of a sum invested in stock was specific. 2d. He expressly makes the general legacies to Gardiner and his children payable in certain railroad bonds, if owned by the testator at the time of his death, and makes no such direction as to the legacies of the stock in question. 3d. In the clause empowering the executors to sell, the exception of "what I have hereinbefore disposed of" evidently refers to his numerous legacies of this stock, and not merely to the bonds mentioned only in the bequests to Gardiner and his children.

The testator's intention to bequeath specifically shares which he owned appears to us to be much clearer than in White v. Winchester, 6 Pick. 48, in which the mere fact of the testator's owning stock exactly equal in amount to that bequeathed was held by this court, in a judgment delivered by Mr. Justice Wilde, after full consideration of the early English cases, to raise a strong presumption that the testator intended to give the stock of which he was the owner; and quite as plain as if the testator, in speaking of the shares bequeathed, had used the word "my," which is generally admitted to be sufficient to make a bequest specific. 2 Wms. Ex'ors. (6th Am. ed.) 1255. Upon a careful examination of the numerous and not always consistent cases cited at the bar, they do not appear to us to afford sufficient ground for a different conclusion.

The other question in the case arises under the tenth article of the will, which is as follows: "I give and bequeath unto George P. Metcalf, in trust and confidence however, one hundred shares of the stock of the Pittsburg, Fort Wayne and Chicago Railroad Company, for the benefit of Nancy Green, sister of my deceased wife, and William Green, husband of said Nancy, for and during their natural lives, as follows: First, during the life of said Nancy, the net income of the same shall be paid over semiannually to said Nancy. In case said Nancy should die before said William, then at the decease of said Nancy said trustee shall transfer one half of said stock in equal parts to said Association and said Home. The income of the remainder shall be paid to said William as aforesaid during his natural life. Second. In case the said William should die before said Nancy, then at the decease of said Nancy the whole of said stock shall be transferred in equal shares to said Association and said Home, and said trust estate shall cease."

The eleventh article contains another bequest in similar form in all respects, except in putting the testator's brother Charles Phipps in place of Nancy Green and his wife Sophronia Phipps in place of William Green; inserting after the words "her natural life" this clause: "and at her decease the remainder of said trust estate shall be transferred to said Association and said Home as aforesaid;" and adding at the end of the whole bequest the following: "By said Association and said Home, as mentioned in items 10 and 11, I mean and intend the Association for the Relief of Aged and Indigent Females named in item and the Home for Aged Men mentioned in items 3 and 4."

Nancy Green having died before her husband, and half the stock mentioned in the tenth article having been thereupon transferred to the two charitable institutions, the question is whether, upon the subsequent death of her husband, the remaining half of this stock is likewise to be transferred to the charities, or falls into the residue of the testator's estate.

The decision of this question doubtless depends upon the intention of the testator, as manifested by the words that he has used, and an omission to express his intention cannot be supplied by conjecture. But if a reading of the whole will...