Crapo v. Pierce

Braley, J. By the fifth clause of her will Sylvia Ann Howland gave $10,000 to trustees, whose successors are the petitioners, upon the trust “to pay to Frederick Brownell who now works for me, the income and net profits arising therefrom during his life; and after the decease of said Frederick to pay the said income to his present wife, if she shall survive him, during her life, and after the decease of said Frederick and wife, to pay, distribute and divide the said principal fund, however the [143] same may be then invested, to and among tbe children of said Frederick and wife and the issue of any deceased child by right of representation.” As the beneficiaries for life are dead, the principal fund is now to be distributed. The question is whether Mary L. Pierce, the appellant, a child of Frederick Brownell by his first marriage, is entitled to share in the distribution with Frederick A. Brown-ell and Abby B. Brownell, children by his second marriage. It is well settled law that in the construction of a will not only the intention of the testator must control, but is to be gathered from the instrument itself read in the light of the circumstances existing at the time it was made. Dana v. Dana, 185 Mass. 156. Thissell v. Schillinger, 186 Mass. 180. Denfield, petitioner, 156 Mass. 265. These familiar rules are to be applied for the purpose of ascertaining the intention of the testatrix. At the date of the execution of the will Frederick Bi’ownell and his wife Anna B. Brownell were in the employment of the testatrix. They had been for many years in her service both before and after their marriage, and the existing relation created not only a friendly interest in their welfare, but led her to recognize their long and faithful service by making pecuniary provision for their benefit. With these conditions in mind she provides for Frederick absolutely during his life, and at his death the income is given to “ his present wife.” This specific provision while designed to show her regard for Anna also prevented the possible intervention of another legatee for life before distribution among the children, if Anna died and Frederick again married. Even if all his children were living, yet in her contemplation the family was a unit composed of Frederick, his wife, and the two children born of the second marriage; for she immediately goes on to provide for a final distribution after the decease of their father and mother. If she had said the children of “said Frederick”, and gone no further, those born of both marriages would have been included. Andrews v. Andrews, L. R. 15 Ir. 199. But the qualifying words “and wife” are used, and constitute a limitation which cannot be rejected, and narrows the gift. [144] The whole phrase then should be read collectively as she used it, and not distributively to mean the children of Frederick, and the children of Anna. Luce v. Harris, 79 Penn. St. 482. Gelston v. Shields, 78 N. Y. 275. By this interpretation the words plainly identify “ children ” to be the issue of Frederick by “ his present wife ”, and do not include the appellant. Decree of Probate Court affirmed.