Porter v. Howe

• Decision Date: 28 June 1899
• Citation: 54 N.E. 255,173 Mass. 521
• Parties: PORTER v. HOWE et al. (four cases). HOWE v. HAVERHILL Y.M.C.A. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 521

54 N.E. 255

PORTER

v.HOWE et al. (four cases).

HOWE

v.HAVERHILL Y.M.C.A. et al.

Supreme Judicial Court of Massachusetts, Essex.

June 28, 1899.

Cases reserved from supreme judicial court, Essex county; John W. Hammond, Judge.

Four actions by one Porter, trustee, against one Howe and others, and an action by Henry S. Howe, executor, against the Haverhill Young Men's Christian Association, to construe the will of James H. Carleton. Appeals were taken from the probate court, and the actions were consolidated, and reserved for the full court. Affirmed.

S.C. Darling, for American Board of Com'rs of Foreign Missions and others.

Hurlburt, Jones & Cabot, for G.T. Sanders and others.

Ira A. Abbott, for Haverhill Y.M.C.A. and others.

M. Storey and J.L. Thorndike, for H.S. Howe and others.

KNOWLTON, J.

These cases present questions of law in regard to the construction of the will of James H. Carleton. The last is an appeal from the allowance of the executor's account. The appellants contend that the payment of legacies under the first 11 items of the will was erroneous, on the ground that the estate is insufficient to pay the legacies in full, and that these should abate proportionally with the others. But it is plain that this contention is not well founded. The twelfth item of the will, and all that follow it, give legacies only out of the rest, residue, and remainder of the estate after the payment of the legacies mentioned in the items that precede it. The decree of the probate court allowing the account must be affirmed.

The other is a petition to the probate court for instructions to the trustees under the will, in which several of the respondents took appeals from the decree of that court. By the twenty-first subdivision of the thirteenth item of the will, the testator gave to the Young Men's Christian Association in Haverhill as follows: “The sum of fifteen thousand dollars, in addition to the ten thousand dollars for which I now stand pledged.” He had previously signed and delivered to the officers of this association a paper writing in these words: “Haverhill, December 2, 1890. Believing in the work of the Haverhill Young Men's Christian Association, and realizing its need of a building of its own in which to do a more successful work in leading the young men to a right relation to their fellows and their God, I now subscribe the first five and the last five thousand dollars of seventy-five thousand dollars to be raised for the purpose of erecting in our city a building to belong to the Young Men's Christian Association.” This paper was signed on the day of its date, without any valuable consideration. Only a little more than $11,000, exclusive of the subscription by the testator, has been subscribed or raised for the purposes mentioned in said writing. The will recognizes the pledge which the testator had previously given, and gives a legacy of $15,000. This legacy stands by itself, unaffected by the pledge. He gives it in addition to the pledge, and he leaves the pledge to have such an effect as it may. The pledge was only of a part of $75,000 to be raised for the purpose mentioned, and was, in effect, conditional upon the raising of that amount within a reasonable time. As only a small part of the amount has been subscribed, and the reasonable time within which to comply with the condition has already elapsed, the pledge is no longer in force, and the legacy is for $15,000 only.

The other questions in the case all grow out of the fact that the estate is insufficient to pay the legacies in full. By the thirteenth subdivision of the thirteenth clause of the will, the testator directed his executors and trustees to pay off all mortgages and other incumbrances on his undivided half of a certain store on Washington street in Boston, “and thereupon, by proper deeds of conveyance, make over and convey to Henry S. Howe, aforesaid, the said undivided half of said store with its appurtenances,” etc. There was a mortgage upon the store, which was made by the testator's wife in her lifetime. The property was afterwards conveyed to the testator subject to this mortgage. The question arises whether the executors and trustees are to pay the whole of this mortgage or only such proportional part of it as they pay of the pecuniary legacies, in view of the necessary abatement of them. This property was specifically devised, and for that reason it was not to share with the ordinary pecuniary legacies the deduction to be made because of the insufficiency of assets. By the will the testator assumes the mortgage debt, and makes it his own. It was previously a charge upon the store, without payment of which it was impossible to make a perfect title to the property. The specific devise is of the property free from incumbrances. We are of opinion that the probate court rightly held that this mortgage must be paid in full. Andrews v. Bishop, 5 Allen, 490-493;Bradford v. Forbes, 9 Allen, 365;Richardson v. Hall, 124 Mass. 228-236;Brown v. Baron, 162 Mass. 56, 37 N.E. 772.

The petitioners ask to be instructed as to whether the fund retained in their hands to pay the annuity to Anna F. Bowzer is, on the death of said Bowzer, to be divided among the legatees whose legacies abate, or is to be paid over, under the fifteenth item of the will, to the residuary legatees, the Hale Hospital and the North Congregational Society in Haverhill. We are...