Worcester Trust Co. v. Turner

Sheldon, J. 1. It is rightly agreed by all parties that the legacies given by the eighth, ninth and seventeenth clauses of the will to Warren E. Sibley, Lydia Young and Victoria M. Worcester have lapsed; that to Mrs. Young because she was not a relation of the testator within the meaning of E. L. c. 135, § 21; Esty v. Clark, 101 Mass. 36; Kimball v. Story, 108 Mass. 382, 385; Horton v. Earle, 162 Mass. 448; Curley v. Lynch, 206 Mass. 289; and the others because neither of these two legatees left issue. Frost v. Courtis, 167 Mass. 251. The amounts of these legacies fall into the residue and become a part of the amount to be distributed under the fifth clause of the thirtieth article of the will. Dresel v. King, 198 Mass. 546. 2. This fifth clause of the thirtieth article of the will is strictly residuary. It disposes of whatever residue may be left by ordering that “ to be divided among the first sixteen legatees named ” in the will, “inproportion to the several amounts given to each.” This is a bequest as directly to those sixteen individuals and no others as if they were specified by name, instead of being identified by the order in which they are named in the will. It is not such a disposition as was made in cases relied on by some of the defendants in which beneficiaries were identified by description only and not by name, and, because a will speaks as of the time of the testator’s death, it was held that those must take who answered to the description at that later time and not those who answered to it only at the time when the will was made.* Or, more exactly, it is the first sixteen legatees who are named in the will, whether they actually take under it or not, who are described here and who really answer to the testator’s description both at the time of his making his will and at that of his death. It is also plain that these sixteen legatees take their shares of the residue severally, and not as a class. As in Sias v. Chase, 207 Mass. 372, 375, “ they are relatives and friends of the testator, to all of whom legacies had been given in the earlier part of the will.” As in Sohier v. Inches, 12 Gray, 385, the gift is to each one absolutely, and in legal effect is made to each by name — 121 — (Jones v. Crane, 16 Gray, 308), and there are no words importing survivorship. A division is to be made in stated proportions among them, which of itself indicates that they are to take neither as joint tenants nor as members of a class, and that there is to be no increase by survivorship among them. Frost v. Courtis, 167 Mass. 251. Lombard v. Boyden, 5 Allen, 249. Lyman v. Coolidge, 176 Mass. 7. Shattuck v. Wall, 174 Mass. 167, 169. Stanwood v. Stanwood, 179 Mass. 223, 226. Loomis v. Gorham, 186 Mass. 444. 3. It follows from these considerations that each one of the residuary bequests to Mrs. Young, Sibley and Mrs. Worcester, lapsed like their general legacies. Best v. Berry, 189 Mass. 510, 512, and cases cited. The question arises how the amount of these bequests is now to be distributed. The general rule to be applied in such cases is well settled and is scarcely disputed. It was succinctly stated by Lathrop, J., in Lyman v. Coolidge, 176 Mass. 7, 9: “ Where a legacy lapses which is part of the residue, it cannot, according to our decisions, fall into the residue because it is itself a part of the residue, and it must pass as intestate estate.” In Dresel v. King, 198 Mass. 546, a ease closely resembling in principle the one now before us, Lyman v. Coolidge was quoted with approval, and the same rule was applied. The same result has been reached in other cases, both here and elsewhere. Hooper v. Hooper, 9 Cush. 122. Sohier v. Inches, 12 Gray, 385, 387, in which this court said of such a bequest: “ It certainly cannot fall into the residue, because it was itself a part of the residue. It must therefore pass to the heirs at law as undevised estate.” Jones v. Crane, 16 Gray, 308. Lombard v. Boyden, 5 Allen, 249, 251, in which after a clear statement of the rule it is said that in such a case “ the share of one who dies in the life of the testator . . «■ will pass to the next of bin, under the statute of distributions.” Frost v. Courtis, 167 Mass. 251. Powers v. Codwise, 172 Mass. 425. Colt v. Colt, 33 Conn. 270. Floyd v. Barker, 1 Paige, 480. Craighead v. Given, 10 S. & R. 351. Crawford v. Mount Grove Cemetery Association, 218 Ill. 399. Ackroyd v. Smithson, 1 Bro. C. C. 503. It may be granted, as was said in Lombard v. Boyden, 5 Allen, 249, and Best v. Berry, 189 Mass. 510, that this rule would not prevail against a manifest intention of the testator that such — 122 — a lapsed residuary bequest, instead of being treated as intestate property, should go to increase the shares of other residuary legatees. But upon examination of this will in all its parts and consideration of the able arguments which have been addressed to us we have not been able to find the expression of such an intent in the language used. It is not enough that he had, as undoubtedly he did have, a general intent to dispose of all his property by his will. That was so in many of the cases already referred to. Such an intent was found by the court in Dresel v. King, 198 Mass. 546. In that case, as in this, the difficulty is that in the events which have happened he has made no disposition of the amount of these lapsed legacies ; and the court cannot make one for him. Sanger v. Bourke, 209 Mass. 481, 486, 487. The case at bar differs from those which have been relied on in argument. In Smith v. Haynes, 202 Mass. 531, and Swallow v. Swallow, 166 Mass. 241, the bequests were to beneficiaries who were held to constitute a class, among the members of which there would of course be survivorship. Other cases turned upon the evident intent of the testator. The pecuniary legacies given in the earlier part of the will to Lydia Young, Warren E. Sibley and Victoria M. Worcester fall into the residue; and the residue thus increased is to be divided among the first sixteen legatees named in the will as written, except that the shares of the residue which thus would come to these three deceased legatees are to be distributed as intestate estate to the next of kin of the testator. 4. One of the legacies which thus will be increased is that given by the second clause of the will. The will gives this to the Worcester Trust Company, but in trust to pay the income to the testator’s sister Mrs. Turner for her life, with a discretionary power to the trustee, if “ the income shall be insufficient at any time to provide for all her necessities and reasonable comforts,” to pay to her so much of the principal as may be needed therefor. The trustee is directed to exercise discretion in her favor. She is also authorized to dispose of the fund itself by will; but if she does not do so, the fund at her decease is to go to the testator’s heirs. She now contends that she is the legatee mentioned in this clause of the will, and that she is entitled personally to receive the corresponding share in the residue. But we are — 123 — unable to adopt this view. Technically, the Worcester Trust Company is the legatee, though in trust for her. She can receive no part of the principal of the fund, except in the discretion of the trustee as already mentioned. That this discretion is to be exercised in her favor is far from giving her an absolute right to demand and receive the fund itself. And, if she should die intestate, the fund will revert to the testator’s own heirs. She has merely an equitable life estate with a power of disposition by will. We do not overlook the fact that the testator in the first clause of the thirtieth article of his will speaks of the legacy as one to her; but we -cannot see that he intended the increment which might come from the residue of his estate to take a different course or to become any more fully hers than the principal legacy to which it was appended. The case presented is not like Parker v. Iasigi, 138 Mass. 416. It is more like Iasigi v. Iasigi, 161 Mass. 75, and O'Brien v. Lewis, 208 Mass. 515. See also Matter of Logan, 131 N. Y. 456, and Crawford v. Mount Grove Cemetery Association, 218 Ill. 399. The decree of the Probate Court was correct, and a decree should now be entered in accordance therewith. So ordered. Footnotes [*] Miles v. Boyden, 3 Pick. 213. Howland v. Slade, 155 Mass. 415. White v. Massachusetts Institute of Technology, 171 Mass. 84. Pierce v. Knight, 182 Mass. 72, 79. Viner v. Francis, 2 Bro. C. C. 658. Lincoln v. Pelham, 10 Ves. 166.