Porter v. Howe

Knowlton, J. These cases present questions of law in regard to the construction of the will of James H. Carleton. The second is an appeal from the allowance of the executor’s account. The appellants contend that the payment of legacies under the first eleven items of the will was erroneous, on the — 525 — ground that the estate is insufficient to pay the legacies in full, and that these should abate proportionally with the others. But it is plain that this contention is not well founded. The twelfth item of the will, and all the items that follow it, give legacies only out of the rest, residue, and remainder of the estate, after the payment of the legacies mentioned in the items that precede it. The decree of the Probate Court allowing the account must be affirmed. The other is a petition to the Probate Court for instructions to the trustees under the will, in which several of the respondents took appeals from the decree of that court. By the twenty-first subdivision of the thirteenth item of the will, the testator gave to the Young Men’s Christian Association in Haverhill as follows: “ The sum of fifteen thousand dollars in addition to the ten thousand dollars for which I now stand pledged.” He had previously signed and delivered to the officers of this association a paper writing in these words: “ Haverhill, December 2, 1890. Believing in the work of the Haverhill Young Men’s Christian Association, and realizing its need of a building of its own in which to do a more successful work in leading the young men to a right relation to their fellows and their God, I now subscribe the first five and the last five thousand dollars of seventy-five thousand dollars to be raised for the purpose of erecting in our city a building to belong to the Young Men’s Christian Association.” This paper was signed on the day of its date, without any valuable consideration. Only a little more than eleven thousand dollars, exclusive of the subscription by the testator, has been subscribed or raised for the purposes mentioned in said wilting. The will recognizes the pledge which the testator had previously given, and gives a legacy of fifteen thousand dollars. This legacy stands by itself, unaffected by the pledge. He gives it in addition to the pledge, and he leaves the pledge to have such an effect as it may. The pledge was only of a part of seventy-five thousand dollars to be raised for the purpose mentioned, and was in effect conditional upon the raising of that amount within a reasonable time. As only a small part of the amount has been subscribed, and the reasonable time within which to comply with the condition has already elapsed, — 526 — the pledge is no longer in force, and the legacy is for fifteen thousand dollars only. The other questions in the case all grow out of the fact that the estate is insufficient to pay the legacies in full. By the first subdivision of the thirteenth clause of the will, the testator directed his executors and trustees to pay off all mortgages and other encumbrances on his undivided half of a certain store on. Washington Street in Boston, “ and thereupon, by proper deeds of conveyance, make over and convey to Henry S. Howe aforesaid, the said undivided half of said store with its appurtenances,” etc. There was a mortgage upon the store, which was made by the testator’s wife in her lifetime. The property was afterwards conveyed to the testator subject to this mortgage. The question arises whether the executors and trustees are to pay the whole of this mortgage or only such proportional part of it as they pay of the pecuniary legacies, in view of the necessary abatement of them. This property was specifically devised, and for that reason it was not to share with the ordinary pecuniary legacies the deduction to be made because of the insufficiency of assets. By the will the testator assumes the mortgage debt and makes it his own. It was previously a charge upon the store, without payment of which it was impossible to make a perfect title to the property. The specific devise is of the property free from encumbrances. We are of opinion that the Probate Court rightly held that this mortgage must be paid in full. Andrews v. Bishop, 5 Allen, 490, 493. Bradford v. Forbes, 9 Allen, 365. Richardson v. Hall, 124 Mass. 228, 236. Brown v. Baron, 162 Mass. 56. The petitioners ask to be instructed as to whether the fund retained in their hands to pay the annuity to Anna P. Bowzer is, on the death of said Bowzer, to be divided among the legatees whose legacies abate; or is to be paid over under the fifteenth item of the will to the residuary legatees, the City Hospital and the North Congregational Society in Haverhill. We are of opinion that the gift to the residuary legatees under the fifteenth item is only of such part of the estate, if any, as remains after the payment of all the previous legacies in full; and if any of them are diminished for want of assets, the fund retained for the payment of Anna F. Bowzer under the twelfth — 527 — item is to be used on the death of the annuitant to make up the deficiency so far as may be. The most important question in the case is whether all the legacies given by the thirteenth item of the will are to abate proportionally, or whether those mentioned in the subdivisions from one to twelve and a half inclusive, are to be paid in full, and the deduction is all to be made from the legacies mentioned in the remaining sixteen subdivisions from thirteen to twenty-eight inclusive. The general rule in case of a deficiency of assets is, that, unless it appears from the will that the testator otherwise intended, all general pecuniary legacies abate in equal proportions. In Towle v. Swasey, 106 Mass. 100,104, Mr. Justice Colt says in the opinion: “ The testator, in the absence of clear proof to the contrary, must be deemed to have acted upon the belief that his estate would be sufficient to answer the purposes to which he devotes it. . . . As between legacies which are in their nature mere bounties, the presumption of intended equality will prevail, unless there is unequivocal evidence to the contrary; and no priority will be allowed where the expressions of the will are ambiguous.” See also Richardson v. Hall, 127 Mass. 64; Boston Safe Deposit & Trust Co. v. Plummer, 142 Mass. 257, 263 ; Babbidge v. Vittum, 156 Mass. 38. The recognized exception to the general rule is where the legatee takes as a purchaser, as where the legacy is given in lieu of dower. This exception is not applicable to ' the present case. In order to give a preference to some over others of general pecuniary legatees, the expression of the intention of the testator so to do must be clear and conclusive. Miller v. Huddlestone, 3 Macn. & G. 513, 523. Emery v. Batchelder, 78 Maine, 233. There is no legal difference in this respect between legacies to individuals and legacies to public charities. Nor does relationship furnish any test, although all such facts may be considered in determining the intention of the testator. In the present cases there is nothing to indicate that the testator thought that his property might be insufficient to pay the legacies. Indeed, the presumption is strong that he thought there was no doubt of its sufficiency. There is no expression from the beginning to the end of the will indicating that he — 528 — wished to make a distinction between legacies to the individuals mentioned in the thirteenth item of the will and legacies to charitable corporations. Of these persons the nearest of kin to the testator was a cousin, and no others were nearer than children and grandchildren of a deceased cousin. Several of them were relations of his deceased wife, and others were friends. The agreed statement of facts shows that he was attached to many of these persons, and it also shows that he felt great interest in the public charities mentioned in the will. There is nothing- in this branch of the case that justifies a finding that he intended to give the legacies to individuals precedence over legacies to charities. It is true that in the will the first twelve subdivisions of the thirteenth item, and the next subdivision, which is numbered twelve and one half, relate to individuals, and the remaining sixteen, except the last, which provides for the care of his burial lot, relate to charitable corporations. But this mode of arrangement and classification does not show that one class was considered more important or meritorious than the other. Indeed, it would seem that the small sum devoted to the care of his burial lot would be one of the last that he would have made subordinate to legacies to friends and distant relatives. The thirteenth subdivision begins with these words: “ Further, my said executors and trustees shall then pay over the following gifts and bequests, namely,” etc. The words “ further ” and “ then,” used in such a connection, do not ordinarily denote anything more than an order of sequence. So far as tve know, they have never been held, without more, to make the legacies following them residuary. They have repeatedly been held not to import a preference. Blower v. Morret, 2 Ves. Sen. 420. Beeston v. Booth, 4 Madd. 161. Brown v. Allen, 1 Vern. 31. Thwaites v. Foreman, 1 Coll. 409. Everett v. Carr, 59 Maine, 325. Sumner v. American Some Missionary Society, 64 N. H. 321. The reference in the last item of the will to the fact, that “ certain of the legacies and bequests named above are limited to be paid after certain events, as recited,” etc., does not seem to us to relate to the question now before us. It seems to refer partly to the distinction between legacies payable before the — 529 — death of his sister and those payable afterwards. We are of opinion that all the legacies payable under the thirteenth item of the will must abate proportionally, and that the construction put upon the will by the Probate Court was correct. Decrees accordingly.