Smith v. Livermore

• Court: Supreme Judicial Court of Massachusetts
• Citation: Smith v. Livermore, 10 N.E.2d 117, 298 Mass. 223 (Mass. 1937)
• Decision Date: 17 September 1937
• Parties: FRANK C. SMITH, JR., & another, executors, v. JESSIE LIVERMORE & others.

298 Mass. 223

10 N.E.2d 117

FRANK C. SMITH, JR., & another, executors, v. JESSIE LIVERMORE & others.

Supreme Judicial Court of Massachusetts, Worcester.

September 17, 1937

February 4, 1937.

Present: PIERCE FIELD, DONAHUE, & LUMMUS, JJ.

Devise and Legacy Lapsed legacy, Residue, Codicil, Preferred legacy Construction of particular phrase, General rules of construction, Creation of trust, Extrinsic evidence affecting construction, Identity of beneficiary, Charity, Conditional legacy, Time of vesting, Taxation. Will, Codicil. Trust, What constitutes, Charitable, Termination, Payment of income. Probate Court, Petition for instructions. Charity. Evidence Extrinsic affecting writing. Executor and Administrator Distribution, Interest on legacy. Words, "Creating trust funds," "Reversions and remainders," "Then," "Satisfied in full."

Where an estate was insufficient to pay legacies in full, the sums represented by lapsed legacies were applied to the payment of the deficiency and were not divided among the residuary legatees, although the will provided that lapsed legacies "shall become part of the residue."

A clause near the end of a will setting forth a general scheme for the priority of payment of certain of "the foregoing bequests" in case the testator's estate was insufficient to pay all bequests, applied not only to the will itself but also to substitute or additional bequests in a codicil. A provision in a will that if the estate was insufficient "to pay all the . . . bequests in full" preference was to be given to "clauses . . . making bequests of" $5,000 or more, placed in the preferred classification clauses which gave bequests aggregating $5,000 or more to a class or group to be determined at the testator's death although no member of the class or group might receive that sum.

Two separate clauses, one giving a bequest of $5,000 and the other a bequest of less than $5,000 to the same legatee, could not be combined in order to obtain preference for the bequest under $5,000 under the foregoing provision.

For the purposes of construction of a will, the circumstances known to the testator and apparently in his mind at the time of its execution are to be considered.

A single clause of a will which was inconsistent with the general scheme followed by the will was not given effect to render the general scheme ineffectual.

In construing a provision of a will giving preference, in the event of a deficiency of assets, to "clauses creating trust funds," those words included trust funds created without express words of trust.

Gifts to legatees, if they were living at the testator's death, which were construed as suggesting, but not commanding, what use should be made of the legacies, and a gift to another legatee, if living at the testator's death, "as a token of personal regard and a gift to his younger daughter," were not gifts "creating trust funds" entitled to a preference, provided in the will in case of deficiency of assets, for such gifts; but a gift to a named legatee, if living at the testator's death, "for the son . . . who bears my Christian name" and providing that if "said son is not living at . . . my death, then I give said sum . . . to his father," and sundry gifts to charitable corporations with directions to use the income therefrom for limited purposes within their respective charitable purposes, were gifts "creating trust funds" entitled to such preference.

Under a will with a residuary clause which bequeathed "all reversions and remainders," legacies to named individuals with provisions that in certain contingencies they should be "distributed" or "divided in accordance with the residuary clause," were, as part of the residue, subject to the payment of deficiencies in pecuniary legacies in priority to payment to residuary legatees.

Where the life beneficiary of a testamentary trust died before the testator, there was no occasion for setting up the trust and the fund was to be distributed by the executors.

Instructions as to distribution of a trust fund were refused where the time for distribution had not arrived.

A legacy to a named person "if he is living at the date of my death . . . to be held by him for" his grandson, lapsed where the named legatee died before the testator, although the grandson survived the testator.

A legacy to the "Massachusetts Historical and Genealogical Society," which was nonexistent, was construed in the light of extrinsic facts to mean a legacy to the Massachusetts Historical Society and not to the New England

Historic Genealogical Society, both of which were existing societies. By legacies to the "National Portrait Gallery in Edinburgh" and to the

"National Portrait Gallery of Scotland," both nonexistent, a testator meant to make gifts to the Scottish National Portrait Gallery rather than to the National Gallery of Scotland.

In the absence of special provisions in a will, a sum of money given in trust, the income to be paid to a named beneficiary, was payable one year from the testator's death in an amount increased by the income which could have been obtained on the principal during that year; and in prorating the assets among the legatees upon the estate proving insufficient to pay all legatees in full, the amount of the trust legacy so increased should be used for that legacy and for the ordinary legacies the amounts specified in the will.

Under a will giving a life interest in a trust fund to a beneficiary conditional upon his accepting a life estate in the testator's real estate, another beneficiary, who became entitled under the will to the real estate in fee and the trust fund outright upon the first beneficiary's declining the life estate, was in the position of an ordinary legatee respecting the trust fund and was not entitled to the income thereof from the date of the testator's death, but only to interest thereon beginning one year thereafter.

A provision in a will that the pecuniary legacies should be paid "in full" and that taxes thereon should be paid by the executor "from the funds in his hands, included within the residue," was inapplicable where, because the assets were insufficient to pay all the legacies, there was no residue; a further provision that in case of insufficiency of assets certain legacies should be "satisfied in full" before others were paid did not require payment of taxes on the preferred legacies in priority to payment of the deferred legacies.

PETITION for instructions, filed in the Probate Court for the county of Worcester on April 28, 1936, and afterwards amended.

The case was reserved and reported by F. H. Chamberlain, J., for determination by this court.

J. O. Sibley, stated the case.

R. S. Bowditch, for Frank C.

Smith, Jr., and another, trustees.

J. J. Mahon of Maine, for Edward Farrington Abbott and others.

T. H. Gage, (B.

B. Gilman with him,) for The America Antiquarian Society.

J. S. Strahorn of Maryland, for Willard A.

Saunders.

W. B. Manhard, for Trustees of the Salisbury Municipal Charities and another.

B. Prescott, for W.

Alexander Pittendreigh and another.

H. W. Ogden, (J.

S. Marsh with him,) for Nathaniel Draper Whitin Allen.

F. W. Grinnell, (F.

H. Smith, Jr., with him,) for Massachusetts Historical Society.

F. A. Turner, for New England Historic Genealogical Society. E. J. Hughes, of California, for Edward Randolph Simonson and others, submitted a brief.

J. A. Plummer, for Elizabeth Howard Blake and another, submitted a brief.

H. D. Strack & E.

R. McPherson, Jr., of New York, for Henri de Castellane, submitted a brief.

E. J. Brennan of Connecticut, for Mrs.

Emil Stephan and another, submitted a brief.

H. T. Davis & J.

D. Merriam, for Museum of Fine Arts of Boston, submitted a brief.

G. R. Stobbs & L.

E. Stockwell, for Gladys Sewell and others, submitted a brief.

FIELD, J. Albert H. Whitin, late of Northbridge, died testate on March 6, 1935. The executors of his will brought this petition for instructions -- which was later amended -- in the Probate Court. By consent of the parties the judge of probate reserved and reported, without decision, for the determination of this court the "petition and all questions of law involved" therein. No evidence was submitted to the Probate Court "except the statements of facts presented to the court by counsel and admitted to be true." These statements are incorporated in the record.

The will is dated October 14, 1926. It contains divisions, each described as a "Clause" and numbered. There are two hundred twenty-one such divisions. The first codicil is dated June 18, 1927, and likewise contains divisions so described and numbered. There are sixty such divisions. Three later codicils deal only with the nomination of executors and trustees. Clause 220 of the will provided: "All the rest and residue of my property, real, personal and mixed of every description and kind, including all reversions and remainders, I give, devise and bequeath in equal parts to the National Portrait Gallery in Dublin, Ireland and the Dulerick Gallery at Dulerick, England." Clause 60 of the first codicil is as follows:

"I revoke clause 220 of my will and substitute in place thereof the following clause; Clause 220. All the rest and residue of my property, real, personal and mixed of every description and kind, including all reversions and remainders, to the amount of twenty thousand (20,000) dollars, I give, devise and bequeath in equal parts to the American Antiquarian Society in Worcester, Massachusetts, and the Anglo-American Nursing Home in Rome, Italy.

"The balance of said residue in excess of twenty thousand (20,000) dollars, if any, I give, devise and bequeath to my devoted young cousin, Midshipman Willard A.

Saunders...