Bartlett v. Houdlette

Morton, C. J. The plaintiffs in their bill present two questions, one as to the construction of the seventh clause in the will, and the other as to the construction of the eleventh clause. The seventh clause is as follows: “ I give to each of my nephews, one and all, one hundred dollars each.” There seems to be little room for doubt as to the meaning of this clause. The language clearly includes all his nephews. The fact that he had in the previous parts of the will given legacies to two of his nephews, furnishes no reason for cutting down his language and excluding them from the provisions of this clause, which clearly includes them. We can see no indication that the testator did not intend that, according to the clear import of his language, the nephews to whom legacies had previously been given should receive under this clause one hundred dollars equally with his other nephews. Cushing v. Burrell, 137 Mass. 21. The eleventh clause is as follows: “ Now if in settling up my estate there should not be money enough to pay the legatees what I have willed them, then pay one and all pro rata each, or if otherwise, the same pro rata” This is carelessly and loosely drawn, but it is not difficult to discover what was the purpose and intention of the testator. And in such case the court will supply words and mould the language of the will for the purpose of carrying out the intention of the testator. Metcalf v. Framingham Parish, 128 Mass. 370. The first part of the clause clearly provides, that, in case [28] of a deficiency in the estate, so that all the legatees cannot be paid in full, their legacies shall abate pro rata; he then adds, “ if otherwise,” that is, if instead of there being a deficiency there is a surplus, “ the same pro rata.” He clearly means to pay the same pro rata to the legatees named in this clause. The testator apparently intended to dispose of all his property ; and we can see no other meaning of the language he used for a purpose except the one we have given it. The further question is raised whether any part of the surplus or residuum of the estate should be paid to the cemetery corporation referred to in the eighth clause of the will. It seems to us clear that the testator did not intend to include the cemetery corporation in the provisions of the eleventh clause. They were not in his mind legatees within the meaning of that clause. In the eighth clause he does not give a direct legacy; he orders his executors to fence and otherwise prepare a cemetery lot, and to deposit in some bank eight hundred dollars, of which the interest was to be used to keep the fences in repair, and also six hundred dollars, of which the interest was to be used in beeping the grounds in order. The ninth clause provides that the executors shall “ not pay out any money whatever for legacies until all the debts I leave behind are paid, also all the expenses for completing fences around the cemetery and for the money donated and placed in bank or banks for cemetery purposes whatever.” This shows clearly that the gift for cemetery purposes was to be preferred to-legacies, and was not to abate pro rata, under the first provision of the eleventh clause. It appears reasonably clear, that the testator did not consider the gift for the benefit of the cemetery as a legacy, or that those who managed the money donated were legatees within the meaning of the eleventh clause, who were .to be entitled to a share of the surplus if there was any. The residuum should be divided among all the legatees named in the will, not including the cemetery corporation, pro rata according to the amounts of their legacies. Decree accordingly.