Wood v. Hammond

• Decision Date: 16 March 1889
• Citation: 17 A. 324,16 R.I. 98
• Court: Rhode Island Supreme Court
• Parties: WOOD et al. v. HAMMOND et al.

17 A. 324

16 R.I. 98

WOOD et al.

v. HAMMOND et al.

Supreme Court of Rhode Island.

March 16, 1889.

In equity. Bill by William H. Wood et al., executors, etc., of Daniel Lyman, deceased, against William A. Hammond and others, to construe the will of Daniel Lyman, deceased. Pub. St. R. I. c. 184, § 21, provide that if one or more of the executors named in a will refuse to accept the trust, those who do accept may act with the same power as given to the whole of them.

Wm. G. Roelker, for complainants. W. F. Angell and J. C. B. Woods, for Brown University. R. W. Burbank, for the Rhode Island Society for the Prevention of Cruelty to Children. Arnold Green, for Chapin and others, legatees. Rathbone Gardner, for Grace Memorial Home. J. C, Ely, for Rhode Island Children's Hospital and Nursery. W. W. & S. T., Douglas, for Providence Shelter for Colored Children. D. L. D. Granger, for St. Mary's Orphanage. N. Van Slyck, for City of Providence.

DURFEE C. J. We are asked to decide certain questions arising under the will and codicil of the late Daniel Lyman.

1. The first clause of the will contains the following, to-wit: "I desire so much of the real estate I may die seised and possessed of, as may be necessary to pay the following legacies, to be sold, and from the proceeds of such sale the following legacies paid to the following persons and institutions and societies." Then follow numerous pecuniary legacies, and some devises, and a residuary clause by which the testator gives "all the residue of my property, both real and personal, remaining after paying all legacies, expenses, etc.," to his cousin, Esther D. Chapin, for life, with remainders over. The will was executed July 14, A. D. 1885. On September 18, A. D. 1886, testator executed a codicil beginning as follows, to-wit: "Whereas, owing to certain changes in human affairs which affect more or less the foregoing instrument, I do hereby make this, my codicil to my will and testament, as follows:" The first clause changes a devise of real estate. The second clause states the death of a legatee to whom he had given $10,000 by the will, and bequeaths said sum to three other legatees. The third clause bequeaths $10,000 to Emory Chapin, and the fourth, $25,000 in trust, to Frances Jones Chapin for life, and, after her death, to Brown University, as a fund for the education of poor students, etc. The question is whether legatees under the second, third, and fourth clauses are entitled to have their legacies paid on the same footing as the pecuniary legatees under the will, the estate being insufficient to pay all the legacies in full.

We think they are. In the codicil the testator calls the will "the foregoing instrument," and makes the codicil as "this my codicil to my will and testament," thus uniting the will and codicil, so that the legacies in the codicil are, equally with the legacies in the will, "the following legacies," for the payment of which the executors are desired by the first clause of the will to sell so much of the real estate as may be necessary. If it be said that the legacies of the codicil were not "the following legacies" when these words were written, the answer is that the codicil operated as a republication of the will, making it speak as of the later date of the codicil. 1 Jarm. Wills, c. 8; Evans v. Evans, 17 Sim. 108; Hartley v. Tribber, 16 Beav. 510; 1 Redf. Wills, 287, 288. "If the will be republished," says Chief Justice SHAW, "then all the words contained in it, and which have reference to time, must be considered as applying to the time of the republication, and not to that of the original will." Haven v. Foster, 14 Pick. 534, 540. It is evident that, to have any effect, the legacies given by the codicil must have place with the legacies given by the original will so far as to have priority to the residuary devise, and, if so, we do not see why they should be postponed to the legacies given by the original will to any extent; there being nothing indicating an intent to have them postponed. It is well settled that all codicils are to be regarded as parts of the will, and are to be construed together with it as one instrument or testamentary disposition. 1 Redf. Wills, 287, 288; 1 Williams' Ex'rs, 8. If the legacies given by the third and fourth clauses of the codicil are to be paid on the same footing with the pecuniary legacies given by the original will, still more clearly are the legacies given by the second clause to be so paid; they being substitutions for the $10,000 legacy in the original will. 1 Jarm. Wills, *185; 1 Rogers Leg. * 185; Fond v. Allen, 15 R. 1. 171, 2 Atl. Rep. 302.

2. The will contains the following bequest, to-wit: "To the Nursery I give five thousand ($5,000) dollars." There was no corporation having the corporate name of the "Nursery" when the will was written, but four charitable corporations claim the bequest. The case was sent to a master for him to investigate their claims and report thereon, and it now comes before us on exceptions to this finding. It appears that A. D. 1872 an act was passed by the general assembly creating a corporation under the name of the "Providence Nursery," and that an amendment thereto was passed A. D. 1879, changing the name to the "Rhode Island Children's Hospital and Nursery of Providence." The principal work of this corporation was to care for poor children, under three years old, day and night. It was a well-known charity, and was popularly called the "Nursery." It had appealed to the public for pecuniary aid by entertainments and otherwise as the "Nursery." The testator was accustomed to contribute to it as the "Nursery," and to speak of it by that name. But in April, 1881,—more than four years before the testator made his will, —it had abandoned its work for lack of funds, and had transferred its property and the children whom it was caring for to St. Mary's Orphanage, a charitable corporation in East Providence, and the testator had since then discontinued his contributions to it. St. Mary's Orphanage has maintained the Nursery since the transfer, in connection with its other work, having on an average half its inmates in the Nursery. In 1884 the testator was asked to contribute to the Orphanage; he said, "You mean the Nursery;" the solicitor said, "No, the Orphanage;" to which he replied, "It is the same thing," and contributed. The early friends of the Nursery often called the Orphanage the "Nursery" after the transfer. It seems to us that the Orphanage makes ft better case for the bequest than the Rhode Island Children's Hospital and Nursery; for evidently the bequest was intended for the benefit of the "Nursery" as a favorite charity, and should go to the corporation as the medium through which the benefit would reach its destination. We think it also makes a better case than the Grace Memorial Home, which, prior to its incorporation, carried on its work under the name of the "Day Nursery." Its work began only a few months before the execution of the will, and without either assistance, or, so far as appears, favor, from the testator.

The fourth claimant is the Providence Shelter for Colored Children, which cares for children between three and twelve years old, and, in some instances, under three years old., Its charter provides: "No children are to be received into the Shelter under 3 years of age, unless attended by peculiar circumstances." It is a children's home, rather than a nursery. It was never popularly known as the "Nursery," and it does not appear that the testator ever took an interest in or contributed to it. His cousin, Mrs. Frances J. Chapin, who is interested in it, testifies that he was in the habit of calling it the "Nigger Nursery;" that he wrote his will at her house, and consulted her about the legacies; that he read it to her before signing it; that she asked him to leave something to the Shelter, and he replied that he had left $5,000 to it; that she told him he had made a mistake, and called it the "Nursery;" that he replied, "You know what I mean. I mean the nigger nursery," pointing towards the Shelter; that she asked him to change the word, but he said "You know what 1 mean," and declined, because he did not wish to scratch anything out. The testimony, so far as it relates to the conversation, is objected to as inadmissible. The objection seems to us to be well taken. The testimony is not within the rule under which extrinsic testimony is ordinarily received to elucidate the testamentary intent, namely, that when a devise or bequest is expressed in terms which apply indifferently to two or more persons or institutions claiming the benefit thereof, then extrinsic testimony may be resorted to, to show which of them was intended. For, as we have seen, the Shelter was never called or known as the "Nursery," and, properly speaking, is not a nursery. The effort is to impose upon the will by extrinsic testimony a meaning which, taking it as it naturally applies to existing facts and circumstances, it does not express. It is an effort which contravenes the fundamental requirement of the law that a will shall be in writing; that is, that it shall be a written expression of the testator's intentions.

But, granting that the testimony is admissible, it does not carry conviction. The testator knew that there was a charity called the "Nursery," and, if he had intended to give to the Shelter, instead of the Nursery, it is incredible that he would have refused to alter the bequest, or, indeed, that he would have put it originally in a form to need alteration. His excuse that he did not wish to scratch anything out was evidently a pretense; for it is in evidence that the will has both an interlineation and an erasure. His entire talk about "the nigger nursery," and "You know what I mean," and the pointing, seem to us much more like a playful method of putting his cousin's request aside than like a serious purpose to accede to it. His calling the...