Mills v. Blakelin

• Decision Date: 02 January 1941
• Citation: 30 N.E.2d 873,307 Mass. 542
• Parties: MILLS v. BLAKELIN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 542

30 N.E.2d 873

MILLS

v.BLAKELIN et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 2, 1941.

Proceeding in probate by Melvin A Mills, executor, against Hannah M. Blake lin and others for the construction of the will of Elizabeth Mills, deceased. From a decree adjudging that the will devised real estate in fee to the three children of testatrix, Francis A. Blakelin and Grace M. Blakelin, grandchildren of testatrix, appeal.

Affirmed.Appeal from Probate Court, Essex County; Costello, Judge.

Argued before FIELD, C. J., and DONAHUE, LUMMUS, COX, and RONAN, JJ.

J. P. Kane, of Lawrence, for respondents Blakelin and others.

RONAN, Justice.

Elizabeth Mills died testate in 1907, leaving as her next of kin three children, Hannah M. Blakelin, Annie L. Moulton and Melvin A. Mills. Her will provided for the following disposition of her real estate: ‘Item 2. Any and all real estate that I may possess at the time of my death, I give devise and bequeath to my three children Hannah M. Blakelin Annie A Moulton and Melvin A Mills in equal shares and if either of my said children shall die without issue, his, her or their share or shares shall revert to the said children then living, meaning hereby that said estate or the proceeds from sale or rental income thereof shall continue in the heirs of my lineal decendants [sic]. And I herein forbid the sale or partition of said real estate without the consent of two of my said children during said children's lifetime, but desire my said executor to rent said estate, and after paying all necessary expenses thereon to divide the remainder of said income equally among my living children-until a sale can be made as herein provided.’ After distributing all her personal property substantially equally to her three children, with the exception of small legacies to her grandchildren and a friend, the will provided that the residue be given to her three children ‘if living and if either of my said children shall die without lineal decendants [sic] I desire that his or her share shall be given or revert to my other living children, this last clause referring to property mentioned in this Item No. 11 only.’

Mrs. Moulton, a widow, died intestate in 1910 leaving no issue. Mrs. Blakelin died in 1932 leaving two children, Francis A. Blakelin and Grace M. Blakelin, the appellants. A third child Marcia V. C. Blakelin, a single woman, died intestate prior to the death of her mother. The petitioner Mills is the only surviving child of the testatrix. All the real estate was sold in 1920 and this petition, which seeks a construction of the will in order to determine the rights of the parties in the proceeds of the sale, was filed in the Probate Court of Essex County on January 17, 1923. The case is here by appeal of the two children of Mrs. Blakelin from a decree of the Probate Court, entered on August 2, 1939, adjudging that the will devised the real estate in fee to the three children of the testatrix.

‘The rule for the construction of wills followed by courts in recent times is to ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intent unless prevented by some positive rule of law. * * * It is permissible also to look at all the material circumstances in the light of which the will was executed in order to comprehend the sense and purpose of the language employed.’ Ware v. Minot, 202 Mass. 512, 516, 88 N.E. 1091;Sewall v. Elder, 279 Mass. 473, 476, 477, 181 N.E. 720. The ascertainment of the intent of the testator may be facilitated by reference to the general principle that a will speaks as of the time of his death. Galloupe v. Blake, 248 Mass. 196, 199, 200, 142 N.E. 818;McInnes v. Spillane, 28i Mass. 514, 516, 185 N.E. 47.

The second item of this will, which disposes of the realty, consists of two sentences; the first defines the devisees and the nature of the estate given to them, and the second provides for the management and sale of the property after it has passed under the will. This first sentence is composed of three clauses. In the first clause the testatrix devised all her real estate ‘to my three children Hannah M Blakelin Annie A Moulton and Melvin A Mills in equal shares.’ If that provision stood alone, it would be adequate to pass a fee in one undivided third interest in the realty. Spooner v. Lovejoy, 108 Mass. 529; Basett v. Nickerson, 184 Mass. 169, 68 N.E. 25;Daly v. Toohy, 280 Mass. 51, 181 N.E. 662. But this clause must be construed with the clause that immediately follows and provides that the share of a child dying without issue should go to the children then living. This provision must be given its proper significance in the plan disclosed by her will for the disposition of her real property. It must be read in conjunction with the preceding clause whose language is sufficient to devise the absolute ownership of the property to the children. Full effect can be given to both clauses. The first clause is phrased in words of unmistakable import to the effect that the children are to take the property in fee. Its language is direct and positive. It expresses a purpose which dominates the rest of the provisions of her plan for the devise of her property. That purpose would be fully accomplished, if the children, as in fact they did, should survive their mother. On the other hand, the realization of her intent might be prevented if one of her...