Tomlinson v. Bury
| Decision Date | 23 November 1887 |
| Parties | TOMLINSON and others v. BURY and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Morton & Jennings, for plaintiffs.
The devise of Ann Tomlinson and her children, contained in the fourth clause of the will, was a specific devise of the deposits in the savings banks and of the mill stocks. It is the same as if testator had said, "I give the deposits in such and such banks, and the stocks in such and such mills." Chase v. Lockerman, 11 Gill. & J. 185; Gilbreath v. Winter, 10 Ohio, 64; Everitt v Lane, 2 Ired.Eq. 548; Walton v. Walton, 7 Johns.Ch. 258; Shepard v. Guernsey, 9 Paige, 360; Townsend v. Martin, 7 Hare, 471; Hosking v Nicholls, 1 Younge & C.Ch. 478; Stephenson v Dawson, 3 Beav. 342; Feild v. Pickett, 29 Beav 573; Foxen v. Foxen, 10 Law T. (N.S.) 290; Richardson v. Hall, 124 Mass. 233; Farnum v. Bascom, 122 Mass. 282; Towle v. Swasey, 106 Mass. 100; Foote's Appeal, 22 Pick. 302; White v. Winchester, 6 Pick. 51. It is evident, the testator used the words "bank stock" as equivalent to and in the sense of "bank deposits." The plaintiffs are entitled to contribution. The whole legacy given them has been taken for the payment of debts, and by the widow. The testator intended that after the widow's death his estate should be divided in three specific bequests, approaching equality, of which the plaintiffs should take one. That intention has been defeated in the first instance by the action of the widow. It will be defeated altogether unless the plaintiffs are entitled to contribution. There is no difference in the liability to contribution between the devisees of real and those of personal estate. To the extent that the plaintiff's specific legacy has been taken by the widow, they are as much entitled to contribution as if it had been taken for debts. Borden v. Jenks, 140 Mass. 562, 5 N.E. 623; Farnum v. Bascom, 122 Mass. 282; Richardson v. Hall, 124 Mass. 233; Towle v. Swasey, 106 Mass. 100; Blaney v. Blaney, 1 Cush. 115; Snow v. Callum, 1 Desaus.Eq. 545. No question arises as to the amounts or parties in which or from whom contribution shall come, if the plaintiffs are entitled to contribution at all.
M. Reed, for defendants.
The rights of the plaintiffs under the will of John Tomlinson rest upon the fourth and sixth clauses of said will, the latter being the residuary clause. It appears from the statement of facts that there is no "rest and residue" of the estate, unless the interest given to the Blythe heirs in the Whipple-street estate, in the fifth clause of the will, is a life-interest. If the claim of the plaintiffs for contribution rested upon their interest as residuary legatees alone, it would be inoperative. Wilcox v. Wilcox, 13 Allen, 256; Blaney v. Blaney, 1 Cush. 115; Richardson v. Hall, 124 Mass. 233; Richardson v. Hall, 127 Mass. 67. There seem to be few principles of law better established than that the plaintiffs cannot, as residuary legatees, require contribution from any or all of the defendants. But what are the rights of the plaintiffs under the fifth clause of the will? Are they given a specific legacy? 9 Fish.Dig "Will," 8, C.: "A specific devise or bequest by a description 'which identified a particular subject then existing, as intended to pass to the donee in specie, either directly or indirectly." Ashburner v. Macguire, 2 Brown, Ch. 108. See notes on same in 2 White & T.Lead.Cas.Eq. (4th Amer.Ed.) 600. "A legacy is specific when it is a bequest of a particular thing or sum of money or debt, as distinguished from all others of the same kind." Id. 606. The language of the testator needs to be carefully scanned. The gift is of "all the mill stock and bank stock remaining in my name after the decease of my said wife;" not of all the mill stock and bank stock of which he should die possessed; not of any specific mill stock or bank stock. In fact, by the terms of the will the testator contemplated (clause second) that his wife should have the "use, improvement, and income" of the same, which must have been subject to many contingencies, such as losses, sales, reinvestment. As to "bank stock," there was none. If there was any when the will was made, it had been adeemed before his death. There is no evidence that there ever had been any. The theory that "bank stocks" and "savings bank deposits" are the same, is a mere assumption. Towle v. Swasey, 106 Mass. 100. In this case it was held that "a legacy of whatever sum may be on deposit in" a certain savings bank is specific. But, in considering the case, the court says: "If there had been no deposit at the time of the testator's death, the son would have had no claim upon the estate; and, on the other hand, whatever cash was then in bank is not subject to assessment to make up any unexpected deficiency in the means to pay the other pecuniary legacies." There is a line of cases where gifts of stock or government securities have been held to be specific; but it is when the specific thing or corpus is described as "my" stock, or identified with equal distinctness. Kirby v. Potter, 4 Ves. 750; Barton v. Cooke, 5 Ves. 461; Metcalf v. First Parish, 128 Mass. 370. If the gift to the plaintiffs in the fourth clause of the will should be construed as conveying all the "mill stocks" and "savings bank deposits" (there being no "bank stocks") which the testator owned at the time of his decease, it is the same thing as a gift of "all my personal estate" or of "the whole of my personal estate." The weight of authority is in favor of regarding such a bequest as residuary, unless a contrary intention appears from the context, or can be gathered from the other clauses of the will. Aldrich v. Cooper, 8 Ves. 308. See note on same in 1 White & T.Lead.Cas.Eq. (4th Amer.Ed.) 228-353. Such a gift is interpreted as of all the personal estate that the testator may have at his death, which is not otherwise appropriated by his will, or by the law. Walker's Estate, 3 Rawle, 229; Woodward's Estate, 31 Cal. 595, 602. This interpretation is followed even when a bequest of all the personal estate contains an enumeration of items. Broadwell v. Broadwell, 4 Metc. (Ky.) 290.
As to the equitable relations of the defendants with the plaintiffs, and with each other. The defendant John Bury acquired by purchase the rights of James Tomlinson. Under the will the latter is a specific legatee of the real estate on Mulberry street, which has been assigned to the widow of the testator, and is one of the residuary legatees. Having been deprived of his specific devise by such assignment, he, or the defendant John Bury, his grantee, would, if the plaintiff's contention is correct, have an equitable remedy against the latter for contribution. Farnum v. Bascom, ubi supra. There is some ambiguity in language in the will as to what the interest of these devisees is; but the intent of the testator was undoubtedly to devise to them a fee; for, had he intended to limit the devise to a life interest, he would have added the words "during his life," as in the third clause of the will, and as in the subsequent annuity to Sarah Bury. Chase v. Chase, 132 Mass. 473; Wilmarth v. Bridges, 113 Mass. 407; Barrett v. Marsh, 126 Mass. 213; Brown v. Merrill, 131 Mass. 324; Ladd v. Whitney, 117 Mass. 201. As the devise to Mrs. Blythe and her heirs was made on condition of the payment of the annuity to Sarah Bury by the devisees, the legacy to Sarah Bury is not merely a charge upon, but is primarily payable out of, the land devised. Harris v. Fly, 4 Paige, 421; Simpson v. Clyde, 4 Ohio, (N.S.) 445; Frampton v. Blume, 129 Mass. 152; Nudd v. Powers, 136 Mass. 273.
OPINION
The parties litigant have agreed, if the plaintiffs, whose legacy has been appropriated to the claims of the widow, are entitled to contribution from other legatees, as to the amount to which contribution shall be made, and also as to the proportions in which it shall be distributed. This leaves open as the only question for discussion, whether they are thus entitled. This depends apparently upon the inquiry whether the legacy to them is to be held specific or general. The rule is well settled that if a legacy is specific, and is appropriated to the payment of debts, the legatee (if the general or residuary legacies are not sufficient) is entitled to...
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