Meyerovitz v. Jacobovitz

• Decision Date: 06 March 1928
• Citation: 160 N.E. 331,263 Mass. 47
• Parties: MEYEROVITZ v. JACOBOVITZ et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

263 Mass. 47

160 N.E. 331

MEYEROVITZ

v.JACOBOVITZ et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 6, 1928.

Appeal from Probate Court, Suffolk County; Wm. M. Prest, Judge.

In the matter of the estate of David Jacobovitz, deceased. Petition for probate of the will by Paul Meyerovitz, opposed by Meyer Jacobovitz and others. From a decree allowing the will, respondents appeal. Affirmed.

C. M. Goldman, of Boston, for appellants.

L. J. Halloran, of Boston, for appellee.

RUGG, C. J.

This is an appeal from a decree allowing the will of one David Jacobovitz. It comes before us on a report of the material facts made by the judge of probate, but without a transcript of the evidence.

The reported facts amply support the ultimate findings that the will was executed according to law, that the testator was of sound mind at the time the will was executed, and that its execution was not procured by fraud or undue influence. The facts need not be recited. No new principle of law is involved in holding that the findings cannot be reversed and must be accepted as true as matter of law. G. L. c. 191, § 1; Shailer v. Bumstead, 99 Mass. 112, 121;Hoffman v. Hoffman, 192 Mass. 416, 78 N. E. 492;Neill v. Brackett, 234 Mass. 367, 370, 126 N. E. 93;Allen v. Guarente, 253 Mass. 152, 148 N. E. 461.

It is contended that the will had been revoked by a subsequent agreement between the testator and the main legatee. By the will, pecuniary legacies were given to the amount of $1,900, and the rest of the estate was given to the executor. With respect to this agreement, the reported facts are to the effect that, several weeks after the execution of the will, the attorney for the testator, in consequence of directions by the latter, brought to him ‘an instrument purporting to be an agreement for support for life, under the terms of which Paul Meyerovitz was to provide a home for the testator during his natural life and furnish all necessary food and provisions, and as consideration therefor the testator made or purported to make a transfer of about $7,000 in cash, and a certain parcel of real estate in West Roxbury. I understand that the cash had been paid over, but there was then no present transfer of real estate. The testator stated as his reason that he was afraid his brothers and sisters would make trouble for Paul Meyerovitz, relative to the will, after he was dead, and he wanted him to have his property while he was living. The agreement was signed in duplicate by David Jacobovitz and Paul Meyerovitz and the acknowledgment of both as their free act and deed was taken by David Scott. The testator intended that this agreement should serve as a revocation of the will. But I find that there was no legal revocation of the will.’

The only donative clause of the will aside from those giving definite pecuniary legacies is in these words:

‘All the rest and residue of my estate real, personal or mixed, wherever it may be found, I devise and bequeath to my nephew, Paul Meyerovitz, absolutely.’

This is a true residuary clause. Its manifest design is to include all property of the testator not disposed of in some other way. The appellants rely upon these words in Ballard v. Carter, 5 Pick. 112, 116,16 Am. Dec. 377:

‘The devisor must be seised of the same estate, at the time of his death, that he was seised of when he made his will, to make it a good devise. In other words, that any alteration in the estate after the making of the will, amounts to a revocation.’

Those words import that they were used concerning a devise of real estate, and relate to the general doctrine of ademption. Moreover, that case was decided before the enactment of Rev. St. c. 62, § 3, now G. L. 191, § 19, to the effect...