Babbidge v. Vittum

Holmes, J. This is a bill for instructions, brought to ascertain whether the legacies in the sixth, seventh, and eighth articles of the will of the late Thomas Wentworth Peirce are entitled to priority over all subsequent legacies and gifts. More narrowly, the question is between the articles just mentioned, and the ninth, tenth, eleventh, and twelfth articles, as the legacies in the thirteenth and fourteenth articles are, respectively, “ out of any property which may then remain,” and “ all which then remains,” and are admitted to be postponed. The bequests and devises in the earlier articles of the will are all specific. The sixth article gives one hundred and fifty thousand dollars in trust, to pay to the guardians of the testator’s daughter so much of the net income as the trustees deemed for her best interest, the same to be applied to her maintenance and education; and in trust to add the remaining income to capital, and to pay the property and its accumulations over to the daughter when she has attained the age of twenty-one. The seventh article gives one hundred thousand dollars upon similar trusts for the testator’s son. The eighth article gives one million dollars in trust to pay to the guardians of each of said children such part of the net income as the trustees may deem necessary, (if they deem any part necessary,) the same to be applied to the maintenance and education of said children, in addition to the provisions before made for them, until the elder child attains the age of twenty-one, or would have attained it had she lived. The remaining income is to be added to the capital. After the time just mentioned, the whole income is to be divided between the two children or their issue, taking by representation and per stirpes, and twenty-one years after the death of the survivor of the two children the principal is to be divided in the same way. The trust for the son is declared to be for the purpose of protecting him and his family from want, and is made inalienable. [45] The largest gifts in the following articles are to the testator’s brother, his sister, and her children, who were dependent upon him for support either wholly or mainly, to other near relations, and a few friends, including one gift of twenty-five thousand dollars free from trust, but which the testator hopes to have applied to purposes not disclosed. The total amount of the gifts in articles ninth, tenth, eleventh, and twelfth is a little over half a million dollars. The gifts in articles sixth, seventh, and eighth, to his children, declared by him to be his only children, amount to a million and a quarter. All the specific gifts are to the children, and attention is called on their behalf to the fact that the homestead estate given in the second article, which the testator plainly expected to have kept up, is an expensive establishment. In our opinion, there is nothing to warrant a presumption that the testator intended to prefer his children, and it is certain that he did not express any such preference in words. The only doubt is with regal’d to the income directed to be applied to maintenance and education, in view of the decision in Towle v. Swasey, 106 Mass. 100. Richardson v. Hall, 127 Mass. 64, is explained by the reason given on page 68 of the report. In Towle v. Sivasey, a legacy to an adopted son of the income of ten thousand dollars, to be expended by his guardian for his support and education during his minority, was held entitled to priority over ordinary pecuniary legacies, although the gift to him of the principal sum at twenty-one was not. The ground relied on was that the income given was not more than sufficient for the discharge of the natural obligation to which it was devoted, and that the purpose would be defeated if it were liable to abatement, there being no other provision for the adopted son, and it being unlikely under the peculiar circumstances that the widow would do anything for him. The decision shows very plainly that in the present case the capital and so much of the income as is not to be applied to the maintenance and education of the children are not entitled to preference. The will shows that the testator thought it doubtful whether any part of the income of the million dollars would be applied to that purpose. There are specific gifts of considerable value, so that it cannot be said that there is no other provision for the children. True, [46] the children probably were expected to keep and to enjoy them in kind, but it is to be remembered that the argument we are considering does not go on any expressed or conjectured actual intent of the testator, but simply on a presumption, to prevent the failure to discharge a natural obligation. With reference to this question the value of the other gifts is important. In the same connection, it is important also to remember the largeness of the sums involved, and that it is unlikely that a change of circumstances necessitating an abatement so great as to defeat the performance of the testator’s natural duty would take place without a change in his will. Again, it is probable that the testator regarded himself as performing a natural duty in leaving some of the other legacies, which nevertheless could not be picked out for preference. The language of the Lord Chancellor in Miller v. Huddlestone, 3 McN. & G. 513, 529, is peculiarly applicable to the present case, and we adopt it as expressing our own views: “ Take, for example, the common instance of a legacy of a large sum to a child, and another legacy of a smaller sum to an aged relation, or another legacy of a still smaller sum to a friend in poverty, or to an old servant: by giving priority to the child’s legacy the other might lose his or her legacy altogether, and yet in most cases this would be utterly repugnant to what it may fairly be presumed the testator would have intended, had he known that there would have been a deficiency of assets.” We may add that the language of the thirteenth and fourteenth articles, which we have referred to at the outset as postponing those legacies, shows that the testator had the notion of priorities present to'his mind, and that" his lawyer was capable of expressing the idea. The will would seem to have been drawn by a very experienced draughtsman, who was one of the counsel in Towle v. Swasey. Finally, the language of the sixth, seventh, and eighth articles not only does not express that the share of income directed “to be paid over to the children’s guardian is to have priority over that which is to be accumulated, but quite excludes such a notion. We are of opinion that the legacies from the sixth to the twelfth articles of the will inclusive, all abate in equal proportions. Decree accordingly.