Doherty v. O'Hearn

Braley, J. The petitioner, who is the executor of the will of James F. Wall, having been empowered to sell, at either private sale or public auction, the reversionary interest of the testator in the premises known as sixty-eight and seventy Henley Street in the city of Boston, made application to the Land Court, under the R. L. c. 128, § 18, cl. 2, for registration of the title in fee. But as the interest of the testator is derived from the will of his father, John Wall, under which, upon the death of his mother, Mary Wall, who was given a life estate but is now deceased, the son takes the remainder in the “houses and land numbered sixty-eight . . . and seventy . . . Chelsea Street in the Charlestown District of said Boston,” the respondent, the daughter of John and Mary, contends that by the residuary clause, wherein the residue is devised to his wife, she takes the fee under the will of her mother and the petition should be dismissed. It is plain on the face of the wills of the father and son that the descriptions are not identical, and the question is whether extrinsic evidence is admissible to show that they were employed to describe the same land. Or, in other words, what portion of his [293] estate did John Wall mean when he used the descriptive phrase found in his will to identify the real property in which his wife was given a life interest and his son the remainder. The uniform law of construction must be resorted to, and the will is to be read in the light of all the surrounding facts and attendant circumstances to ascertain the testator’s intention. Ware v. Minot, 202 Mass. 512. Sibley v. Maxwell, 203 Mass. 94. Lydon v. Campbell, 204 Mass. 580. It may be said generally, that unless in terms it is so vague and indefinite as to be impossible of an intelligent execution, a will is sufficiently certain and definite as to be capable of enforcement, where the property devised or bequeathed and the legatees who are to take have been so described by the testator, that they can be identified by the aid of extrinsic evidence. Whipple v. Adams, 1 Met. 444. Bodman v. American Tract Society, 9 Allen, 447. Minot v. Attorney General, 189 Mass. 176. Sanger v. Bourke, 209 Mass. 481. Worcester Trust Co. v. Turner, 210 Mass. 115. Bullard v. Leach, 213 Mass. 117. The agreed facts being admissible for this purpose, no reasonable doubt is left that John Wall intended to dispose of all his estate. It appears that he had occupied the premises in question for nearly thirty years before his death, and the will was executed at his home. The provisions for his wife contemplated a continuance for her benefit of the place of their marital residence and with this in mind he makes a specific devise which in meaning is the same as if he had said, “now occupied by me as a home.” It is found by the trial judge, who was empowered to draw inferences of fact, that even if the numbers on the doors as named in the devise corresponded with the enumeration of Henley Street the premises were so located as to face toward Chelsea Street and were opposite to the junction of this street with Henley Street. The designation of “Chelsea Street” used by the testator, even if not technically accurate as a boundary, manifestly referred to the street with which in his mind his homestead was identified. It is sufficiently definite to express his purpose, and the estate devised being certain, there is no sufficient reason why his will should not be carried into execution. Bullard v. Leach, 213 Mass. 117. The decree registering the petitioner’s title accordingly should be affirmed. So ordered.