Sawyer v. Freeman

Holmes, J. If the income during the life of the widow is not disposed of otherwise, it is part of the residuary fund, and as such is applicable to the payment of the pecuniary legacies. The residuary legatee has no claim until those legacies are satisfied. Blaney v. Blaney, 1 Cush. 107, 117. Firth v. Denny, 2 Allen, 468, 471. Whatever is given to the daughter, Julia Ann B. Lewis, income as well as principal, is given her “ in case said Julia Ann B. Lewis shall not be living at the death of her mother.” Until [547] that time, although her interest is vested, nothing is given to her unconditionally. Income and principal stand on the same footing. Under our decisions at least, we cannot read “ at the death of her mother” as meaning whenever, either at or before the death of her mother, the interest of the latter shall come to an end. Brandenburg v. Thorndike, 139 Mass. 102. Therefore the daughter is not now entitled absolutely to the income by acceleration, assuming that we should apply that doctrine in the case of a gift for life with a remainder over not subject to be devested. Vance’s estate, 141 Penn. St. 201, 210. Yeaton v. Roberts, 28 N. H. 459. Holderby v. Walker, 3 Jones Eq. 46. Macknet v. Macknet, 9 C. E. Green, 277. See Upham v. Emerson, 119 Mass. 509, 513. If then the income during the widow’s life is not given in express terms with the fund from which it comes, it is to be applied to the pecuniary legacies. The question whether it is so given is a doubtful one. If it is, the words which do it are “ and all income thereof then in their hands.” It is possible, if not likely, that the testator when he used those words was thinking only of such income as the trustees did not happen to have laid out at the widow’s death in the ordinary course of expenditure under the trust, and that he was not thinking of the overthrow of his scheme for the whole previous time by his widow’s waiving the provisions of the will. But it has been said that a testator must be taken to have contemplated the possibility of a waiver. Upham v. Emerson, 119 Mass. 509, 513. And if that ever is to be assumed, there are unusual reasons for making the assumption in this case. The way in which he mentions his wife suggests that he is dealing with her somewhat at arm’s length. He does not call her his wife, but “ Amanda Maria Freeman, formerly Amanda Maria Farrington, of Franklin, in the county of Norfolk”; a noticeable contrast to his way of speaking of his nephews and nieces, whom in the legacies given to them he calls nephews and nieces. He gives her nothing outright, but only an equitable life interest in eight thousand dollars, less than half of an estate of less than twenty thousand dollars. The nature of the gift is such that the widow almost was invited to consider whether she would not waive it, and the manner of it suggests [548] that the testator may have had the chance of her doing so in his mind. Taking the language of the will literally, the income goes with the principal: “ upon the death of said Amanda Maria Freeman to pay the whole of said sum of eight thousand dollars and all income thereof then in their hands to Julia Ann B. Lewis, her daughter.” The same language is repeated in substance, showing that income as well as principal was steadily before the testator's mind : “ in ease said Julia Ann B. Lewis shall not be living, . . . then to pay said sum and income,” and again in the last event “ said sum of eight thousand dollars and income shall be held to be part of the rest, residue, and remainder.” There does not seem to be any sufficient reason for limiting the income disposed of to income in the hands of the trustees for one cause only. It seems to be safe to give the language its literal force, and to read it as meaning all income of the fund which has accrued since the testator’s death, and which for any reason remains unexpended or not paid over to the widow. It is not very useful to conjecture what the testator had in his mind. It often happens that a residuary clause passes property which the testator intended and directed to go a different way. Batchelder, petitioner, 147 Mass. 465, 468. The words “ all income thereof then in their hands ” are a sort of special residuary clause for that fund, and there seem to be similar reasons for treating them as a drag-net within the sphere of their operation. Brandenburg v. Thorndike, 139 Mass. 102, 104. The income is to be accumulated until the death of the widow, and then the entire fund, principal and income, is to be paid to the daughter if she is living at that time. If she is not then living, then as directed in the clause of the will which we have construed. Decree accordingly. The Chief Justice and Justices Allen and Knowlton dissent from this opinion. Their view of the case is as follows. The widow by her waiver took certain property from other legatees and gave up her own legacy. Except as the waiver necessarily modifies it, the will is to be given effect as nearly as possible according to its terms to carry out the intention of the testator. [549] He gave his widow the' income of $8,000 for her life. What he gave in the same clause to his daughter or to her issue, or, if they should not survive his widow, to his residuary legatee, was only the principal sum of $8,000, and any income which might accrue after the payments regularly made to his widow before her death. The payments were to be made so far as practicable semiannually, and the entire accrued income belonged to her as the time for each payment arrived. There would probably be in the executor’s hands at the time of her death a small amount of income which accrued after the last payment. This with the principal was given over. The income which accrued previously was the widow’s legacy, and if the will was given full effect, no part of it would go to any one else. If the testator thought of the possibility of its being waived by the widow, he must be presumed to have expected that it would be used as the law uses such legacies in cases of waiver by a widow, to make up so far as possible the legacies which are diminished to furnish her with her distributive share of the estate. The fact that the renounced legacy is in the form of income furnishes no reason why it should not be used to reimburse the pecuniary legatees proportionally so far as possible for the sums contributed by them to the share of the widow. The words “ income thereof then in their hands ” cannot have one meaning if the will is allowed to operate as the testator intended it should, and a different meaning if some of its provisions are set aside by the widow.