Fernald v. Gooch

Sheldon, J. This will, as originally drawn by the testatrix herself, was intended to dispose of all her property. She gave legacies of stated sums of money to nearly all of her next of kin, and made some charitable bequests. She then, after providing for any shrinkage of her estate, directed that the residue of her property after the payment of another charitable bequest, should be used toward the payment of her executors for their services under her will. We think it evident that under the terms of this will the amount of any final residue, however large it might have been, would have gone to the persons named as executors for their personal benefit. But some six years after the making of this will, having lost about |3,800 by bad investments in mining stocks, she executed a codicil to her will. By this instrument she revoked some legacies and made other changes, the effect of which was to reduce considerably the amount of her pecuniary legacies. She also revoked the appointment of one of her executors, and put in his place the attorney who drew the codicil. But in the first paragraph of the codicil she expressly confirmed and ratified her will “ in all respects save as the same . . . [was] . . . changed ” by the codicil; and she specifically provided in the clause which nominated the new executor that “ all the provisions of . . . [her] . . . said will applicable to executors . . . [should] . . . apply ” to the new executor. Taking the will and the codicil together, it seems plain that she still intended to dispose of all her estate, and that she did not intend her next of kin to take more than she gave to them in terms. She said in the tenth clause of her will that she gave nothing to her brother’s widow and to the daughter of that widow, who was one of her own next of kin, because they needed no assistance from her; and this would indicate that she did not [412] intend any part of the residue of her estate to go as undisposed of property to her next of kin and so in par; to this niece. Nor does the fact that by the codicil she gave a pecuniary legacy to this niece diminish the force of the implication. She desired that this niece should take the legacy and nothing more. Clearly this would have been so if the will had stood alone. Damon v. Bibber, 135 Mass. 458. Kenady v. Sinnott, 179 U. S. 606, 616. Robards v. Brown, 167 Mo. 447, 457. And the provision made in this will for the executors was for their own benefit and not in trust for any others, as it was in Minot v. Attorney Greneral, 189 Mass. 176. Nor do we find anything in the codicil which, when read in connection with the will, shows a change in her intent. The argument that such a change should be inferred from the substitution of one who was merely a friendly acquaintance for a nephew as one of the executors is met by the language which she used in making this change, and which we have quoted above. The provision in the codicil that regardless of any residuary provisions in the codicil her executors should receive in any event fair compensation for their services does not import such a change of intent. Taken in connection with her express confirmation of the will, it shows that she did not desire to change that part of her will any further than to guard against the possible implication that their compensation was to be limited to the amount of the residue of her estate, however small that might turn out to be. It was a provision made for their benefit, not as a limitation of what they were to receive. It is probable that the residue of the estate is larger than was expected by the testatrix; and it reasonably may be conjectured that if she had foreseen the present state of affairs she would have made some other disposition of this amount; but upon the face of the will and codicil we are of opinion that the residue after payment of the legacy to the American Baptist Home Mission Society must go to the executors for their own benefit. Decree accordingly.