Murray v. Roman Catholic Home for Orphans & Destitute Children of Boston

Braley, J. The husband and the only son of the testatrix are both living, and as the executors are entitled to be instructed only as to their present duties, there is no occasion to determine the rights, if any, of the devisees and legatees referred to or named in the second, fourth, fifth and sixth clauses of the will. Peabody v. Tyszkiewicz, 191 Mass. 317. But the third clause is in these words: “To my son, John Frederick Murray aforesaid, I give, and bequeath all of my personal estate of every name and kind of which I may die possessed or be entitled at the time of my decease.” The word “ aforesaid” refers to the first clause where he is named as one of the executors. The record recites that, the estate having been settled, the total amount of personal property is $48,157.77, concerning the distribution of which the executors are in doubt. They are instructed, that, upon payment of the legacy and succession tax assessed thereon and any other lawful charges, the balance is to be paid to John Frederick Murray, who notwithstanding the wording of the subsequent clauses takes all personal property as the sole legatee. Galligan v. McDonald, 200 Mass. 299. Rhines v. Wentworth, 209 Mass. 585, 588. The costs of the executors are to be settled in their account in the court of probate; but the costs of the defendants taxed as between solicitor and client are to be determined by a single justice. Decree accordingly.