Powers v. Godwise

• Decision Date: 07 January 1899
• Citation: 52 N.E. 525,172 Mass. 425
• Parties: POWERS v. GODWISE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

172 Mass. 425

52 N.E. 525

POWERS v. GODWISE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1899

COUNSEL

C.C. Powers, for plaintiff.

G.A.P Godwise, pro se.

OPINION

FIELD C.J.

This is a writ of scire facias to recover a certain amount of money from the defendant, who, as executor of the will of James M Shaw, was charged as trustee in an action by the plaintiff against Elisha W. Shaw. Isaac H. Hazelton, Oliver C Livermore, and Arnold Livermore were the witnesses, and the only witnesses, to the will. Oliver C. Livermore when the will was executed was, and ever since has been, the husband of Georgie S. Livermore, who was one of the nieces of James M. Shaw, living at the time of his decease. The three articles of the will material to the present case are as follows: "Fourth. I give and bequeath to each of my nieces living at my decease $100." "Seventh. I give and bequeath, as a token of remembrance, to each, Elisha W Shaw, Daniel C. Shaw, Frank M. Shaw, and Sanford P. Judkins, fifty dollars. Eighth. All the rest, residue, and remainder of my estate, whether real, personal, or mixed, I give, devise, and bequeath unto my two nieces now living, Georgie S. Livermore and Fanny M. Hildreth, daughters of my late brother George W. Shaw, deceased, to be equally divided between them, share and share alike, to hold by them and their heirs and assigns forever." The present defendant has paid to the plaintiff $50, with interest, being the amount of the legacy given to Elisha W. Shaw by the seventh article of the will. The superior court ruled that all legacies given by the will to Georgie S. Livermore are void, because she was and is the wife of one of the three witnesses of the will. Pub.St. c. 127, § 3. The gift of $100 to Georgie S. Livermore by the fourth article of the will being void, this would go into the residue of the estate given and devised by the eighth article. By the eighth article the residue is given and devised unto two nieces, Georgie S. Livermore and Fanny M. Hildreth, "to be equally divided between them, share and share alike." We infer from the exceptions that all of the residue is personal property. The only question of law raised by the exceptions is whether, that part of the residue given to Georgie S. Livermore being void, the whole residue goes to Fanny M. Hildreth, or whether the part given to Georgie S. Livermore must be administered as intestate estate. We think...