Stevens v. Fisher

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: DEVENS, J.
• Citation: Stevens v. Fisher, 10 N. E. 803, 144 Mass. 114 (Mass. 1887)
• Decision Date: 25 February 1887
• Parties: STEVENS, Trustee v. FISHER, Trustee, and others.

144 Mass. 114

10 N.E. 803

STEVENS, Trustee v. FISHER, Trustee, and others.

Supreme Judicial Court of Massachusetts, Suffolk.

February 25, 1887

COUNSEL

H.W. Suter, for plaintiff.

Augustus Russ and Sumner Albee, for defendants Emery B. and Gardner P Fisher.

This will is somewhat inartificially drawn; but the testatrix has expressed in language as positive and definite as could be chosen, and with some unnecessary repetition, apparently to give force and emphasis thereto, her intention to give absolute and unconditional legacies of $10,000 each to her brothers, the defendants Emery B. and Gardner B. Fisher. If, by implication, it could be held that these legacies were made payable out of the fund created by the sixth article of the will, then these two legacies are demonstrative and not specific. Pawlet's Case, T. Raym. 335, (1681;) Savile v. Blacket, 1 P.Wms. 777, 779, (1721;) Rider v Wager, 2 P.Wms. 328, (1725;) Attorney General v. Parkin, 2 Amb. 566, (1769;) Cartwright v. Cartwright in Ashburner v. Macguire, 2 Brown, Ch. 114; Mayrant v. Davis, 1 Desaus.Eq. 202, (1791;) Coleman v. Coleman, 2 Ves.Jr. 639, (1795;) Roberts v. Pocock, 4 Ves. 150; Kirby v. Potter, Id. 748; Acton v. Acton, 1 Mer. 178; Mann v. Copland, 2 Madd. 223; Le Grice v. Finch, 3 Mer. 50; Fowler v. Willoughby, 2 Sim. & S. 354, 358; Willox v. Rhodes, 2 Russ. 452; Farmer v. Mills, 4 Russ. 86; Arnold v. Arnold, 2 Mylne & K. 374; Colville v. Middleton, 3 Beav. 570, 575; Fream v. Dowling, 20 Beav. 624; Giddings v. Seward, 16 N.Y. 365; Pierrepont v. Edwards, 25 N.Y. 128; Hodges v. Grant, L.R. 4 Eq. 140; Tootal's Estate, 2 Ch.Div. 628; Armstrong's Appeal, 63 Pa.St. 314; Boston Safe Dep., etc., Co. v. Plummer, 142 Mass. 257, 262, 8 N.E. 51. The word "estate" in a will includes everything, unless restrained by particular expressions. Turbett v. Turbett, 3 Yeates, 187; Mably v. Stainback, 1 Mart. (N.C.) 75.

A demonstrative legacy is the bequest of a certain sum of money, with a direction that it shall be paid out of a particular fund. It differs from a specific legacy in this respect: that, if the fund falls for any cause, it is nevertheless entitled to come on the estate as a general legacy; and it differs from a general legacy in this: that it does not abate in that case. By a devise of all the rest and residue is meant such property as has not been specifically devised and bequeathed in the previous clauses of the will. Levering v. Riggs, 49 Md. 432.

There have been no transfers or appropriations of this estate made which prevent the fulfillment of the intentions of this testatrix. Crocker v. Dillon, 133 Mass. 91, and cases cited; Hall v. Cushing, 9 Pick. 395, 409. See Pub.St. c. 141, § 16; Newcomb v. Williams, 9 Metc. 525, 534; Conkey v. Dickinson, 13 Metc. 51; Daggett v. White, 128 Mass. 398; White v. Ditson, 140 Mass. 351, 354, 4 N.E. 606; Prior v. Talbot, 10 Cush. 1. No mere mental determination to make an appropriation of the residue in their lands, nor a physical separation of it from the rest of the estate, would be sufficient to divest them of their responsibility to account for it as executors. Miller v. Congdon, 14 Gray, 114; Lincoln v. Wood, 128 Mass. 203; Daggett v. White, 128 Mass. 400; Collins v. Collins, 140 Mass. 502, 5 N.E. 632.

An analysis of this will, stripped of its verbosity and needless repetitions, would reduce all its provisions to the following simple formula: First. Payment of debts; certain specific and small pecuniary legacies. Second. Devise to executors, as trustees, of all the rest of the estate, upon these trusts: to set apart $20,000 for the support of his mother; at her death to pay two legacies to brothers, $10,000 each; residue to be held for the use of two daughters.

H.G. Parker, for defendants G.A. O'Brien and M.L. O'Brien.

The sixth article of the will is clear. The insurance policies are a part of the estate of the testatrix. Article 7, as well as other parts of the will, show haste or lack of precise statement. But omitting the contingency of the death of a brother before the mother of the testatrix, which did not occur, all lack of clearness is obviated. It seems clear that articles 6 and 7 of the will are to be construed together, and that they refer to the same fund of $20,000. The provision in article 7 as to the remainder of the fund can refer to nothing else than the remainder of the fund after the income to the mother and the two legacies of $10,000 each are provided for. The provision of article 7 as to the remainder is that that remainder is to be increased by keeping it well invested, and held for the purposes of the will. All the provisions of the will having been complied with, save a settlement with the defendants Fisher, and the administration of the remainder of the estate under article 9, the remainder of the fund of $20,000 named in article 7 is to be added to the general remainder of the estate under said ninth article. The will gave but $20,000 to provide a life income to L.B. Fisher, the mother of the testatrix, and upon the death of the mother a gift of $10,000 each to the two brothers of the testatrix. That $20,000 having been put in trust to satisfy said bequests, and having been by theft depleted by the sum of $13,581.33, there remains but $6,418.67 to satisfy the legacies to the two brothers,--$3,209.38 to each.

OPINION

DEVENS J.

It is the contention of the brothers, Emery B. and Gardner B. Fisher, that although by the will of the testatrix a fund of $20,000 was to be created, the income of which was to be devoted to the mother of testatrix, who was also their own mother, during her life, and the sums of $10,000 bequeathed to each, respectively, are coincident in amount with this fund as originally created, and although they were not payable until the death of their mother, yet that they are absolute and unconditional legacies, to be paid out of any funds of the estate; the question arising by reason that the $20,000 fund has been depleted, and two legacies of $10,000 each cannot now be paid in full therefrom. They further contend that, although by the ninth clause of the will the residue of the estate was bequeathed to be held in trust for the benefit of two sisters, daughters of the testatrix, and the issue of such sisters, and such trust-estate has been actually formed and dealt with as such, during the life-time of the mother, yet properly there could be no residuum or accurate determination of the amount thereof until these legacies had been paid. The fund for the benefit of the mother during life was formed, as the will provided, from the proceeds of certain insurance policies held by the testatrix on the life of her deceased husband, with the addition of a sufficient amount from the general funds of the estate to make $20,000; and the executors were duly appointed, and qualified by giving bond as trustees of this estate as held for the use and benefit of the mother during life, and thereafter for other purposes.

The executors never petitioned to be, and never were, appointed trustees of the rest and residue of the estate, but did transfer to themselves as trustees under the ninth clause, and set apart, the remaining portion of the estate of the testatrix, and have kept the same distinct. They made return in their second account as executors of these funds as paid to themselves as trustees, and have subsequently rendered accounts thereof to the probate court, in which the disposition of the funds of the residuary estate and of the income thereof have been separately accounted for by them as such. In regard to this latter fund, the trustees have never given bond as such; but whatever might be the effect of this, if we were considering whether they were still liable upon their bond as executors, this fact does not appear to have the importance which the defendants Fisher attach to it. Nor, indeed, could the action, or the failure to act, of the executors or trustees control the construction of the will. The question in the case at bar is rather what by the will the executors or trustees should have done in regard to the residuum, after the debts had been paid and after the $20,000 fund was formed, as that might have some bearing upon the construction of the clause by which the two legacies of $10,000 were bequeathed upon the decease of the mother.

The portion of the seventh clause, omitting the contingency of the death of one before the mother, which did not occur, by which the gift is made to the two brothers, would read as follows: "I give, devise, and bequeath out of my estate after my said mother's decease, to the use of my two brothers, said Emery B. Fisher and...