Temple v. Russell

• Decision Date: 26 February 1925
• Citation: Temple v. Russell, 251 Mass. 231, 146 N.E. 679 (Mass. 1925)
• Parties: TEMPLE v. RUSSELL et al.
• Court: Supreme Judicial Court of Massachusetts

251 Mass. 231

146 N.E. 679

TEMPLE

v.RUSSELL et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 26, 1925.

Appeal from Probate Court, Middlesex County; L. E. Chamberlain, Judge.

In the matter of the estate of Emeline M. Evans, deceased.Petition by Frederick H. Temple, administrator, against Henry W. Russell and others, for instruction as to disposition of proceeds of sale of land and money.From the decree rendered, defendant named appeals.Affirmed.

H. R. Brentlinger, of Boston, for petitioner.

A. E. Pillsbury, of Boston, for respondent Massachusetts Soc. for Prevention of Cruelty to Animals.

G. R. Warfield, of Gardner, for other respondents.

RUGG, C. J.

This is a petition by the administrator with the will annexed of the estate of Emeline M. Evans, for instructions as to the disposition of the proceeds of sale of certain real estate and of a savings bank deposit which his testatrix, without professional assistance, in a holographic will devised and bequeathed as follows:

‘First-To Austin E. Russell, of said Medford.Massachusetts, who for long years has been our constant and devoted friend, in recognition of such faithful devotion, I give, devise and bequeath my estate at No. 20Brooks Park, in said Medford, Massachusetts, together with all goods, chattels and personal property about my home, to hold or dispose of as he desires or deems best.Also the sum of $2,000, now in the Medford Savings Bank.It is also my will and wish, that at the death of said Austin E. Russell, or at any time he may so arrange, the above mentioned property may be given to the 'Society for the Prevention of Cruelty to Animals' in Boston.’

The testatrix died February 17, 1923, and the will was admitted to probate on April 11, 1923.

Austin E. Russell, the devisee and legatee named in the will, was unmarried, aged and feeble; he owned property amounting to about $9,000 and had a weekly pension of $15; he had long lived in the Medford house at No. 20Brooks Park as one of the household of the testatrix.For many years he had been her constant and devoted friend.At the death of the testatrix he was unable by reason of his health to act as executor or to remain in the Medford house.He went to live with a sister and thence to a private hospital, where he died June 28, 1923, never having used or needed for his comfortable maintenance any part of the property mentioned in the first item of Mrs. Evans' will, or its income, except the proceeds of the furniture of the house, in which all other parties had waived any interest in his favor.The house was sold for $5,000 with the assent of all parties in interest, and under agreement that all rights should remain unaffected and as though the estate had not been converted into personalty.At the date of Mrs. Evans' will, in February, 1920, the amount of her deposit in the Medford Savings Bank was $1,671.56, with one semi-annual interest dividend accrued in November, 1919, but not credited on the book.By subsequent deposits and accrual of interest, less withdrawals of $200 on November 19, 1920 and $50 on September 29, 1922, the amount of deposit at the time of her death was $3,416.80.All these facts preceding her death were known to Mrs. Evans.

Henry W. Russell, an heir at law of Austin E. Russell, appeals from the decree of the probate court for the county of Middlesex, whereby the petitioner was instructed:

‘That the estate of Austin E. Russell has no interest in the property No. 20Brooks Park, Medford, nor in the proceeds of the sale thereof nor in the account in the Medford Savings Bank; that said society [Society for the Prevention of Cruelty to Animals in Boston] is entitled to the proceeds realized from said sale of said property No. 20Brooks Park, with accrued interest; also deposit in said Bank to extent of the bequest of $2,000.The bequest of $2,000 is specific and is to be treated as the real estate and passes as indicated to the said society; that said bequest of $2,000 carries with it accrued interest from testatrix's death February 17, 1923, and that any sum of money on deposit in said bank less accrued interest on said $2,000 is due and payable under provisions of said will to Harriet F. Wemyss and said Temple each one-half.’

None of the respondents other than Henry W. Russell appealed from the decree of the probate court; it consequently stands as to them.The appellant and the respondent Massachusetts Society for the Prevention of Cruelty to Animals concede that the bequest of $2,000 on Deposit in the Medford Savings Bank is specific; that it carries with it any accretions from the death of the testatrix until paid; and that the difference between said $2,000 plus accretions and the total sum of money on deposit in the Medford Savings Bank in the name of Mrs. Evans is due and payable to Harriet F. Wemyss and Frederick H. Temple.

The question for decision is whether Austin E. Russell under the will took an absolute and unqualified estate of inheritance in the property devised, which vested in his heirs upon his death intestate.The pertinent principles touching the interpretation of wills have been stated fully in opinions of this court and need not be rephrased.It was said in Ware v. Minot, 202 Mass. 512, 516, 88 N. E. 1091:

‘The rule for the construction of wills followed by courts in recent times is to ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intentunless prevented by some positive rule of law, rather than to try to make the interpretation of particular words or phrases in...