Keniston v. Mayhew

Field, C. J. In our opinion, Mrs, Sprague took under the residuary clause of the will of Mrs. Ripley a life estate for her personal benefit in all the residue of the property, real or personal, of Mrs. Ripley, with the power in Mrs. Sprague of disposing of it or any part of it at her discretion during her life, but with no power of disposing of it by will, and on her decease all of the property not disposed of by Mrs. Sprague in her lifetime passed to the nearest of kin of Mrs. Ripley. Welsh v. Woodbury, 144 Mass. 542. Kent v. Morrison, 153 Mass. 137. The $3,000 received by Mrs. Sprague for the conveyance of the wharf property, so far as it can be identified, is subject to the provisions of the will unless it was disposed of by Mrs. Sprague in her lifetime. The two sums of $1,000 each, deposited in her name in the New Bedford Institution for Savings, one in trust for Charles Mayhew and the other in trust for Nancy B. Mayhew, cannot be considered as given to Charles Mayhew and Nancy B. Mayhew so as to have become their property, as the facts found by the justice who reported the case are insufficient to establish a completed gift. These deposits with the accumulated dividends, as well as what remains of the $1,000 deposited by Mrs. Sprague in her own name and not in trust, with the [169] accumulated dividends, are a part of the estate of Mrs. Ripley. Sherman v. New Bedford Five Cents Savings Bank, 138 Mass. 581. The words “ nearest of kin ” in the residuary clause mean nearest blood relations. Swasey v. Jaques, 144 Mass. 135. This construction is confirmed by the testatrix’s use of the words “ husband’s nearest relatives.” in the preceding clause. We think that these nearest of kin should be determined as of the death of the testatrix, and not as of the death of Mrs. Sprague. The power of disposition given to Mrs. Sprague did not enlarge her interest in the property beyond that of a life estate, and Mrs. Sprague is not the sole next of kin. Abbott v. Bradstreet, 3 Allen, 587. Minot v. Tappan, 122 Mass. 535. Fargo v. Miller, 150 Mass. 225. The nearest of kin are therefore the brothers of the testatrix; namely, Charles Mayhew, William E. Mayhew, and Henry H. Mayhew, and her sister, Mrs. Sprague. Henry H. Mayhew and Mrs. Sprague have deceased intestate since the death of the testatrix, but the shares of each belong to his or her estate. The real property descends to his or her heirs, and the personal property is to be paid to the administrator of his or her estate. It appears that Littleton C. Wimpenny is special administrator of the estate of Henry H. Mayhew. The husband of Mrs. Sprague died after the death of the testatrix and before the death of Mrs. Sprague, and Mrs. Sprague never had a child. It does not clearly appear that any administrator of Mrs. Sprague’s estate has been appointed. 'The heirs and distributees of her estate appear to have been made parties, but properly an administrator of her estate should be appointed to receive her share of the personal property. The petitioner is entitled to instructions as to the meaning of the will, so far as the personal property is concerned, but it does not appear that he is charged with any duty as to the real property, although we have construed the will with reference to both real and personal property, as the same disposition is made of both. Decree accordingly.