Gaff v. Cornwallis

De Coitrcy, J. In the second clause of the will of Lucy Ellis [229] Tisdale, the defendant’s testatrix, is the following provision: "To my cousin, Marie Louise Zaidee Ellis Gaff, wife of Thomas T. Gaff, of Barnstable, Massachusetts, all my real estate at or about Glen Charlie, in the town of Wareham, and above Glen Charlie, if any there be, and any and all real estate of whatever nature or description that I may own in Plymouth, Massachusetts. I also give to her my silver pitcher, my large plated silver waiter, all jewelry and bric-a-broc except as hereinafter specifically devised, my wardrobe, cedar chests and contents, furniture and books, all silver ware now with said plated waiter in the safe of the Merchants Bank in New Bedford, Massachusetts; the contents, if any, of a drawer in said safe. I also give to her the bank book in the New Bedford Institution for Savings in my name as trustee for her, and all money represented thereby, as and for her absolute property.” The residue of the estate, after the payment of all the legacies, was given to the defendant Cornwallis. By a codicil, dated December 20, 1909, she provided: “Fourth: There is a deposit in the New Bedford Institution for Savings in New Bedford, Massachusetts, evidenced by book numbered 121982, in my name, in trust for Caroline Bartlett Eustis; and also a deposit in said institution for savings evidenced by book numbered 127890, in my name, in trust for Olivia H. Walker. These books have never been delivered by me to either said Eustis or said Walker, and are my sole and absolute property, and in the event of my death form a part of my estate and are to be administered upon as set forth in my will and this codicil.” The will is dated April 23, 1908. The testatrix died in June, 1910. The single justice before whom the case was tried on appeal made certain findings of fact. He found that by the “drawer in said safe,” referred to in the second clause of her will, the testatrix meant the box or drawer in the safe deposit vault of the Merchants Bank, hired by her; and that at the time of her death this box or drawer contained the property which is in controversy. By the long established rule these findings, made by the trial judge who saw and heard the witnesses, must stand, as we cannot say, after an examination of the evidence, that they are plainly wrong. Wier v. American Locomotive Co. 215 Mass. 303. Of course we cannot consider the statements of alleged facts in the voluminous brief of the defendant that do not appear in the record. [230] It seems clear that by the bequest of the “contents” of this safe deposit drawer or box the testatrix intended to give to the plaintiff the property in question. This place of security was under the sole control of the testatrix. She alone knew what valuable papers she had deposited or intended to deposit therein. Her language, by its plain meaning, embraced whatever securities and property she might have in the box at the time of her death, except jsuch as were otherwise disposed of by the will, or from their nature would not be the subject of a devise or bequest. 1 Underhill on Wills, §316. Richmond v. Vanhook, 3 Ired. Eq. 581. See Parrott v. Avery, 159 Mass. 594. We have not here the uncertainty which sometimes attaches to bequests of personal property that is described only by location. See Wms. Ex. (10th ed.) 1179; 40 Cyc. 1551. Whether all of the things contained in the receptacle or only specially designated articles therein will pass by such a bequest will depend upon the intention of the testator as manifested by the words he uses. Evidently Lucy E. Tisdale did not intend by the bequest under consideration to affect the bank book of the petitioner or that of her husband, both of which had been specifically bequeathed by the will and are not in dispute. But it seems clear, and the single justice rightly ruled, that by the bequest of the contents of the safe deposit box the testatrix intended that the plaintiff should become entitled to the Kennard mortgage and note, the Fibre Bottle Company stock and the two bank books which were declared by the codicil to be a part of her estate,— in other words, to all the property in controversy. In re Robson, [1891] 2 Ch. 559. See Martin v. Smith, 124Mass. 111; Dole v. Johnson, 3 Allen, 364. The right of the plaintiff to bring this bill in equity to recover the amount of her legacy need not be considered, as it appears from the finding of the court that the defendant expressly waived the objection that the bill was prematurely brought, or that the plaintiff had an adequate remedy at law or by petition on the probate side of the court. The single justice properly modified the decree of the Probate Court by charging the defendant with interest on the amount withdrawn by bim from the New Bedford Institution for Savings from the date when he withdrew the same, that is, October 17, 1910, instead of from September 9, 1910. Decree affirmed with costs.