Bradford v. Brinley

Holmes, J. It may be conjectured with some plausibility that what the testator really had in mind in the third article of his will was the whole trust pf one quarter of the residue under his father’s will, — a fund which would be sufficient to give all the children their legacies, even on the view that the legacies to them were specific. But, in the opinion of the majority of the court, the description of the fund is so definite as to exclude this construction, which could be reached only by a somewhat violent transposition of language which is plain as it stands. The case between the widow and children, therefore, must depend upon the question whether the legacies to the children are specific or demonstrative. We must assume that the testator remembered that, before the date of the will, he had conveyed away the West Roxbury homestead mentioned in article 3, as the will does not necessarily imply the contrary. The homestead is only mentioned [89] as part of the property left by the testator’s father to be disposed of by the testator, subject to his mother’s life interest, and serves to identify the fund referred to. But the testator only affects to dispose of the property which “ is ” liable to be disposed of by him, or of the income if his power “ extends ” no further than to dispose of the income, — using the present tense and words which are satisfied without attributing to him an attempt to devise the homestead which he no longer owned. The fund in question, therefore, could not be more than $150,000, or possibly $175,000, because that was the largest sum which could come to him under the clauses of his father’s will referred to. And as he directed that his wife should receive the whole income of the fund until the time for setting apart the first $100,000, and the income of what remained after each sum of $100,000 was set apart, the testator could not have expected the fund to be increased by accumulations. It follows that he could not have expected the three funds of $100,000 each to be raised from property by no possibility amounting to more than $175,000. We may add a further consideration. The testator contemplates in terms the possibility that his power may extend no further than to dispose of the income of the specific property mentioned. This makes it still harder to suppose that he relied on this property alone. The reason for the testator’s doubt points the same way. The property which he deals with in the third article did not come to him as a separate fund, but was left to him along with that which he disposes of in article 1, as part of the residue under his father’s will. For, although his father’s will created a separate fund of $300,000, at least $250,000 of it was to be paid into the residuary fund upon his father’s widow’s decease, and his own title was only under the residuary clause, making the present testator and his brother residuary legatees, and giving one half of his half to the present testator outright, and the other half in trust for him or his family, &c. Hence the testator actually received his share of the $300,000 as part of a larger fund, and the separation of a part of the residue from the rest with reference to its remote origin is purely imaginary. The testator does not say that the sums for the other children after the first shall be raised from the property mentioned in [90] article 3, but simply that they shall be set apart.' • He then goes on to empower his wife to give his children any part of the capital mentioned in this or in the first article, “ except such portion thereof ” as may have been set apart, or may be needed to constitute the funds of $100,000. “ Thereof ” refers grammatically to the capital mentioned in the first article, as well as to that mentioned in the third; and on its face the clause imports that a portion of the capital mentioned in the first article may be needed to constitute the funds. In view of the arbitrary character of the separation between the capitals mentioned in the two articles, and the certainty that the fund mentioned in the third article would be insufficient, this interpretation seems not only grammatical, but reasonable. The whole difficulty is raised by the direction, when the first child reaches majority, “to s'et apart out of the said property,” i. e. out of the $150,000, “ a fund for the benefit of said child, consisting of money or securities, or partly of money and partly of securities, to the amount or value of one hundred thousand dollars.” It is argued that this legacy is specific ; and that the direction to “ set apart ” “ similar ” funds for the other children must be taken to mean legacies of the same character, and is further shown to have this meaning by the provision that the testator’s wife shall continue to have the use, &c. of the remainder of the property. " Whether the legacy to the first child is specific or not, it cannot be allowed to cut down or to limit the legacies of like amounts to the other children, which are not made specific in terms. The testator shows by articles 4 and 5 that he means his children to share his property equally, while the result of holding all the legacies specific would be to give the first child $100,000, if the fund was sufficient, the second not more than $75,000, and the third nothing, and the facts leading to this result were known to the testator. The gift of the use of the remainder of the property to the testator’s wife is made sensible by taking “ the property ” to include that mentioned in the first article, of which also she is given the use for .life. When the specific property of $150,000 is referred to earlier in the article, it is referred to as “ the said property.” In. this connection, again, the arbitrary character [91] of the separation of the property mentioned in article 3 should be kept in mind. There is enough to pay the legacy to the first child, upon any construction of the will. The result will be the same, whether we suppose that the testator began by specifically disposing of the fund described, and then, for the sake of equality, gave to the other children general legacies of the same amount as the specific legacy to the eldest, or say that all the legacies are demonstrative. Many cases of weight, although not binding upon us as authority, go far towards deciding that the legacy to the first child, if it stood alone, even, should be regarded as demonstrative. It is unnecessary to consider how far they are reconcilable with Bliss v. American Bible Society, 2 Allen, 334, and other Massachusetts cases. See Boys v. Williams, 2 Russ. & Myl. 689; Cunliffe v. Cunliffe, 23 W. R. 724; Sparrow v. Josselyn, 16 Beav. 135; Vickers v. Pound, 6 H. L. Cas. 885; Mytton v. Mytton, 44 L. J. Ch. 18; Bowen v. Dorrance, 12 R. I. 269. For these reasons, a majority of the court are of opinion that, as article 1 is in the nature of a residuary clause, and the gift, to the testator’s widow is subject to the provisions of the other articles, the legacies of $100,000 to each of the children must be paid in full. Decree accordingly.