Gruver v. Wood

Hammond, J. The only question is whether the widow is a “beneficiary under this will” within the meaning of the residuary clause. We think she is. It is true the legacy to her in the second item is given apparently in pursuance of the ante-nuptial contract and in lieu of dower and of any other right she as widow might have in the personal estate of the testator, and that therefore in case of a deficiency of assets she would not be regarded as a “ mere ” or “ pure beneficiary,” but would be entitled to a preference. Pollard v. Pollard, 1 Allen, 490. Towle v. Swasey, 106 Mass. 100. Yet she receives something under the will, and in the natural and ordinary sense is a beneficiary, and we think the term was used by the testator in this sense. Moreover, certain legatees named in the preceding clauses of the will are specifically excluded from a share in the property to be distributed under the residuary clause; and it seems more reasonable to suppose that if the testator, who was thus trying to designate what particular legatees should be included within this clause, intended that his wife should be among those excluded, he would have expressly named her among them rather than that he would have left such intention to be inferred from some distinction between a legatee who had claims upon him and one who had not. Decree affirmed.