Richardson v. Hall

• Decision Date: 21 March 1878
• Citation: 124 Mass. 228
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William A. Richardson & others, executors, v. John R. Hall, administrator, & others

124 Mass. 228

William A. Richardson & others, executors, v. John R. Hall, administrator, & others

Supreme Court of Massachusetts

March 21, 1878

Argued March 22, 1877; March 23, 1877

Suffolk Bill in equity by the executors of and trustees under the will of Samuel A. Way, to obtain the instructions of the court. Hearing before Endicott, J., who reserved the case for the consideration of the full court. The facts appear in the opinion.

C Allen for the widow's administrator, and for the son and his wife.

W. A Field, for Mrs. French.

E. R. Hoar, for A. P. Potter.

E. O. Shepard, S. Hoar & E. S. Mansfield, for various other defendants.

Colt J. Lord & Soule, JJ., absent.

OPINION

Colt, J.

The testator died in June, 1872, leaving a widow and a married son. The widow afterwards married the defendant Hall, and is now deceased, Hall having been appointed her administrator. The will was made in March, 1870, and the testator added to it from time to time seven codicils, the last of which was executed shortly before his death.

An outline of the general plan of the testator in the disposition of the estate, as gathered from the numerous provisions of these instruments, and as finally completed after many changes, will aid in deciding the several points reserved for our consideration, upon which we can properly be required to express an opinion in this stage of the case.

The property of the testator, at the time of his death, consisted largely of different parcels of real estate. His personal property, not specifically bequeathed, has since been applied to the payment of debts and the expenses of administration, leaving a balance due to be paid out of the real estate.

By the will, the homestead of the testator and the real estate connected with it, with all the household furniture, plate, jewelry, books, horses, harnesses, carriages and stable furniture, are given to his wife for life, then, excepting the jewelry, to his son for life, and, after his death, to his son's wife for the life of any child of his son so long as the son's wife shall occupy the homestead, with provision as to the remainders. An annuity of $ 12,000 is given to the wife for life, which is to come out of the general residue, but which, it is declared, shall have precedence over all other annuities, and not be subject to deduction in case of any failure of his estate. The executors are also requested to pay, out of the general residue created by the ninth clause, all taxes, insurance and repairs on real estate devised to the wife. These provisions in favor of the wife are made in lieu of dower, or other interest in his estate.

To the son is given, in addition to his interest in the homestead and its furniture, plate, &c., the net income for life of certain real estate in and near Harrison Avenue, (after deducting an annuity of $ 1000 to the son's wife, and an annuity of $ 500 to Edwin Fobes,) so far as sufficient, in the language of the will, "to cover all the living and expenditures" of the son. And, by the seventh codicil, it is provided that if the net income of the Harrison Avenue property shall not be sufficient to pay to the son $ 4500 net, in addition to the sums to be paid to his wife, and to Edwin Fobes, then the amount necessary to make it up to that sum shall be taken out of the annuity of $ 12,000 to his wife. By the same codicil, it is provided that if the son or his present wife shall, under the will, come into possession of the homestead estate, the trustees shall, out of the general residue, pay unto him or her, as the case may be, an annuity of $ 6000, in addition to what they are to receive by the other provisions of the will and codicils, while so in the possession of said estate. To Mrs. French, a sister of the testator's wife, is given certain real estate in Boston Highlands for life, with an absolute annuity of $ 3000, and conditional annuities amounting to $ 2000, also for life; and it is declared that the provisions in her favor shall take precedence of all others, except those in favor of his wife, son and son's wife. The insurance on all lands devised to the wife, son and son's wife, and to Mrs. French, is required to be paid out of the general residue; and the buildings, if destroyed, to be rebuilt by the trustees. There are some other specific devises of interests in real estate for life, and in remainder, which it is not necessary to state in detail.

By the ninth clause of the will, all the residue and remainder of the real and personal estate, with all future remainders and residues, is given to trustees, to pay debts, provide for the exoneration of the real estate previously devised from all mortgages and incumbrances, and for the payment of certain legacies and annuities therein specified. A few of the annuities, as we have seen, are charged upon the net yearly income of the Harrison Avenue estate. But most of the annuities, of which there are a great number, with some pecuniary legacies, are not charged upon any particular estate or upon any particular fund, other than the general residue of the estate, and are made payable out of the residuary real and personal estate by the ninth clause of the will. Many of the annuities of the latter description, and all the pecuniary legacies, except one of $ 40,000 to Asa P. Potter, were revoked by the sixth codicil, and restored by the seventh codicil, on condition that the estate of the testator should prove more than sufficient to satisfy the prior testamentary provisions. A legacy of $ 50,000 was by the seventh codicil also given absolutely to the children of his son instead of former provisions in their behalf.

It thus appears that only two money legacies were finally left to be paid absolutely, namely, that to Potter of $ 40,000, and that to the children of the testator's son of $ 50,000; and only the following absolute annuities, namely, to the widow, $ 12,000; to the son and his wife, after the widow's death, $ 6000; to Mrs. French, $ 3000; to various other persons, some of whom are relatives of the testator, and others not, about $ 2500, besides the income of the Harrison Avenue estate, to the parties named above.

The remainder of the residuary estate, after satisfying all the legacies and annuities of the will, is given for the establishment of a public charity for the benefit of the needlewomen of the city of Boston.

To the trustees, to whom by the ninth clause of the will is given all the remainder of the real and personal estate of every nature and description, is given full power to sell and to make all such changes and investments in the estate as may seem to them desirable. They are especially required to provide, out of the real and personal estate not specifically devised, for the exoneration of the real estate so devised from all mortgages and incumbrances, at such times as they may think expedient, keeping the interest paid.

The estate of the testator proves wholly inadequate to meet the requirements of his will. It is said, indeed, that it is not sufficient to meet the payment of the unconditional legacies and annuities. We are called on to determine by whom the deficiency shall be borne. It is always a question of the testator's intention, to be ascertained from the terms of the will; because that intention must govern in the administration of testamentary assets where there is such deficiency. Thus, as between specific and general legacies, the rule is that the loss must be wholly borne by the latter. A gift of property specifically described necessarily implies that there was no intention on the part of the testator to have compensation made out of his general estate in case the specific gift should fail, and equally implies that there was no intention that other deficiencies in his estate should be made up out of the gift. So, if a legacy is founded on a good consideration, such as a widow's relinquishment of her right of dower, it will not abate with mere beneficiaries, for the widow takes as a purchaser, and it must be presumed that the testator intended first to satisfy the legal claim on his estate.

When the chances of deficiency are anticipated, and provided for by the express terms of the will, then the directions of the testator will of course govern, and the loss must be borne by those on whom he places it, even if the burden is cast upon some of the specific legacies for the benefit of others of that class, or for the benefit of legatees whose bequests are founded on a good consideration. But the presumption of intended equality prevails between general legatees as a class, and between specific legatees as a class, where such legatees are mere beneficiaries, and that equality in respect to the share to be borne in all deficiencies of assets will not be disturbed without clear evidence in the will of a different intention. The fact of near relationship, or dependence, or of the meritorious character of the legatee, is not enough, when the will furnishes no proof of an intention to prefer.) It cannot be left to our mere conjecture that other legacies would not have been made by the testator except upon the expectation that his estate would be sufficient to meet them. Pollard v. Pollard, 1 Allen 490. Towle v. Swasey, 106 Mass. 100. Miller v. Huddlestone, 3 Macn. & Gord. 513. Lewin v. Lewin, 2 Ves. Sen. 415. Shepherd v. Guernsey, 9 Paige 357, 360. Creed v. Creed, 11 Cl. & Fin. 491. Farnum v. Bascom, 122 Mass. 282.

We proceed, according to these rules, to the consideration of the questions here presented, in the order in which they stand in the report.

1. It is conceded by all that the provisions in favor of the widow of the testator stand first in order of priority, and that the devise to her is not subject to any...