Sherman v. Woodard
| Decision Date | 08 May 1945 |
| Citation | 61 N.E.2d 128,318 Mass. 234 |
| Parties | SHERMAN et al. v. WOODARD. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Petition by Gladys Sherman and another against Louise B. Woodard, executrix of the estate of Jessie M. Sullivan, and others, to require payment of petitioners' legacies. From a decree the executrix appeals.
Reversed and petition dismissed.Appeal from Probate Court, Plymouth County; H. K. Stone, Judge.
Before FIELD, C. J., and LUMMUS, DOLAN, RONAN, and SPALDING, JJ.
O. V. Fortier, of Brockton, for petitioners.
M. A. Shattuck and J. W. Keith, both of Brockton, for respondent Woodard.
By her will, Jessie M. Sullivan gave a legacy of $2,000 to the petitioner Gladys Sherman and one of $500 to the petitioner Lillie Henderson. The respondent Louise B. Woodard was appointed executrix.
On January 11, 1944, more than a year having elapsed since the death of the testatrix and the probate of the will, the petitioners brought this petition to require payment of their legacies. The answer set up the insufficiency of the assets. Rondeau v. Miller, 314 Mass. 750, 51 N.E.2d 427. After hearing, on October 9, 1944, the judge ordered the executrix to pay the legacies with interest, and upon motion ordered payment out of the estate of $300 to counsel for the petitioners as costs and expenses. The executrix appealed. The evidence is reported, and the judge reported the material facts under G.L.(Ter.Ed.) c. 215, § 11.
The facts are as follows. Besides property specifically devised or bequeathed, and consequently not available for the payment of ordinary pecuniary legacies (Towle v. Swasey, 106 Mass. 100, 106), the testatrix left assets amounting to $21,744.64. Out of that sum must be paid debts and expenses amounting to $2,623.89, leaving $19,120.75. An action for services rendered the testatrix, with an ad damnum of $5,000, is pending. Besides, the undetermined Massachusetts succession taxes must be paid out of that balance of $19,120.75. The ordinary pecuniary legacies, exclusive of the legacy given by the second paragraph of the will, amount to $11,100. By the second paragraph the testatrix gave $20,000 to Louise B. Woodard as trustee, in trust to invest the same in savings banks and from the income to pay certain expenses on real estate held by the trustee and to pay $10 a week to Duke W. Henderson, a brother of the testatrix, for his life, with power to use principal for his comfortable support and maintenance if needed. At his death the remainder of said $20,000 was to be paid over to said Louise B. Woodard free from trust.
By the seventeenth paragraph the testatrix provided as follows: ‘In the event that my estate shall be insufficient to pay all of the legacies in this will in full, I direct that the legacy constituting the trust for the benefit of my brother, Duke W. Henderson, in Clause [paragraph] Second, shall be paid in full before the payment of any other legacies.’
If the whole legacy of $20,000 given by the second paragraph is entitled to the priority provided by the seventeenth paragraph, it is evident that nothing can be paid to the petitioners upon their legacies.
The decisive question is whether the priority given by the seventeenth paragraph applies to the whole legacy of $20,000 given in trust by the second paragraph, or only to the interest therein of the life beneficiary Duke W. Henderson. Literally, the former construction accords with the words of the will giving priority to ‘the legacy constituting the trust for the benefit of my brother, Duke W. Henderson, in Clause [paragraph] Second,’ and providing that that legacy ‘shall be paid in full before they payment of any other legacies.’ The will evidently contemplated that Henderson would survive the testatrix for a substantial period. If the latter construction should be adopted, there would be no way of setting up the trust fund presently, and giving Henderson his beneficial rights therein during his life, and then compelling the remaindermen to share equally with other legatees in case...
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