Towle v. Delano

Deyens, J. The argument for the respondents Maria D. Miller and Mrs. Moore properly concedes that, without reference to other parts of the will, it might be urged that the clause relating to the daughters of the testator made no provision for them except during the lifetime of the mother. The residuum of the estate is devised and bequeathed to David Miller, upon the condition and subject to the charge of paying to the mother an income of $200 “ during her life,” to each of the daughters a certain income “ so long as both they and their said mother shall all live; ” and it then provides that, “ upon the death of either ” of the daughters, a larger annuity shall be paid to the survivor “ during the life of their said mother.” This is the only provision made for annuities to the daughters, who were not the testator’s legitimate children, and nothing is found in it which indicates that the duration of the annuities bequeathed to the daughters extends beyond the life of the mother. On the contrary, an almost necessary construction of it limits them to this period. Where the construction of a clause is difficult, on account of meagre, involved, or contradictory phraseology, the true meaning of the testator may be sometimes ascertained by examining other provisions. But, even if the clause in question could be held to be of this character, an examination of other portions of [99] the will does not reveal any intention to extend the annuities beyond the life of the mother. He has given, by a subsequent clause, $10,000 to the children of either daughter, should she have children at her decease; and in the event of the death of either daughter without children, the will provides that David Miller “ shall retain said sum of ten thousand dollars to his own use.” The testator, perhaps, contemplated,, as suggested on behalf of the daughters, that a fund of $20,000 would be required for carrying out his will in regard to the illegitimate branch of the family. But this sum of $10,000 is dealt with by the will independently of the provision made thereby for the incomes to the mother and daughters. Thus, if one of the daughters had deceased during the life of the mother, leaving children, while the income of the surviving sister would have been increased, the sum of $10,000 would be at once payable to her children. The testator has indeed made no gift in terms of the income of the $10,000,—which income might accrue after the death of the mother and before the death of a daughter surviving the mother, when the principal sum would become payable to the daughter’s children, should she leave any, — but it is within the scope of the residuary clause; and it cannot be said that, because David Miller is then to retain the $10,000 to his own use, it therefore must be inferred that the annuity to the daughter should be continued during this period, because it would approximate to the interest of that sum, or that the testator has thus indicated any intention that David Miller shall not have its income or interest during this time. That great latitude has been used in construing the words of a will where the intention of a testator could, from the whole context, be ascertained, is certainly true; but where a clause is in itself intelligible, and expressed in apt words, we cannot speculate on the motives which might have governed the testator, or conjecture that he has failed to express his intention, and then supply it. Metcalf v. Framingham Parish, 128 Mass. 370. It is impossible to read the clause, “so long as both they and their said mother shall all live,” by supplying the words “ during their respective lives.” This would be to introduce words which contradict those which follow them, and thus to control the construction of the sentence by the words thus [100] introduced. The mother’s annuity during life has been provided for by the previous clause. Even if the word “ all ” may sometimes be used in the sense of “ each,” when it follows the words “ both they and their mother,” the sentence is applied to the lives of all the three. The subsequent clause then provides for the contingency of one of the daughters dying before the mother. We are therefore of opinion that a fund of $10,000 should be set aside to be paid to the children of Almira D. Moore at her decease, but that she and her sister are not entitled to the annuities after the death of the mother; that the further sum of $10,000 should also be. set aside for the future children of Maria D. Miller; and that sufficient land may be sold for these purposes. Notwithstanding the age of Miss Miller, and the extreme improbability that she can hereafter have offspring, we are not prepared to say that this fund should now be liberated, although we are aware that, under similar circumstances, this has been done by the English court of equity, in the case of In re Widdow’s trusts, L. R. 11 Eq. 408. See Lovering v. Lovering, 129 Mass. 97. Instructions accordingly.