Davis v. Clapp

De Courcy, J. The object of this suit in equity is to enforce payment of certain bequests given by the will of John L. Wilson to his relatives. It comes before us, on the report of a single justice, for interpretation of the will so far as it relates to the validity of these legacies. In substance, the contention of the plaintiffs is that the testator gave to these legatees absolute gifts, payable upon the death of the widow unless she should at her option pay them during her lifetime. The defendants claim that the testator left the payment of said legacies wholly to the discretion of his wife, and that she never exercised her option in favor of the legatees. In the first article of his will, he gives to his wife all his property, for her sole use and benefit, “subject, after her death to the payment of certain legacies and bequests herein named, or at her option to pay them in whole or in part before.” Then follow the bequests to his blood relatives, which have not been paid and are the subject matter of this litigation. If said first article expresses the true intent of the testator, it seems plain that the only option given to the widow related to the time of payment of absolute gifts; that it was not left optional with her to decide whether or not they should ever be paid. The only uncertainty is whether the intention so plainly expressed in this article, is changed or modified by the subsequent articles 8, 9, 12 and 14. In Article 6 the testator makes bequests to his household servants, “not subject to the clause, leaving all legacies payable only after my death at the option of my wife.” It seems to us [143] that the word “only” modifies “after my death,” and not the more remote words “at the option of my wife.” Article 1, to which he was referring, made the legacies to his relatives payable absolutely after the death of his wife. They were payable after his death, meaning thereby during the period between his death and hers, — only at her option. Thus construed this article is not inconsistent with the first. Nor is there anything in Article 9 that modifies the first. The instrument therein referred to is not a deed, but apparently a notice or caveat. His purpose in Article 9, confirming said instrument, was merely to prevent his Florida estate from being administered upon by a Florida administrator other than his wife. Article 12 reads: “I desire before the division of any surplus or reside [jresidue3 of my estate that may be left after the payment of all of the bequests herein made, that my wife Frances shall dispose of the same as she may see fit; leaving it at her discretion.” This article expressly recognizes the legacies in controversy, and deals only with the surplus or residue remaining after payment of them. Further, the limited power of disposal given to his wife by this article shows that the testator had not already given to her the complete title to all his property, as is assumed by the defendants. It may be addedlthat in giving her discretionary power to dispose of that surplus he refers to it as his estate, and not as hers. In Article 14 is the following language: “Under Article 1st. I have stated that all the bequests herein made sba.1T only be paid after my death, at her option.” It is to be noted that this language does not purport to modify or change the first article; he makes a merely descriptive reference to it. If he had intended to modify the definite and formal expression of his intention as expressed in that article it is not likely that he would do so by a mere indefinite and passing reference to it. Even his direct reference to the language thereof is inaccurate. What he said in the earlier paragraph was not “shall only be paid after my death” but "after her death.” It is the case of a layman undertaking to write his own will. What he apparently meant by Article 14 was to explain that he did not make the legacies payable absolutely at his death, nor postpone payment necessarily [144] until his wife’s death, but that he left it optional with her to pay them during the period between his death and her death, feeling confident that she would do what seemed best in the circumstances as they might develop during that period. This construction is in harmony with and gives effect to the other provisions of the will. Especially true is this of Article 11, wherein the testator anticipated the possibility that he might outlive his wife. He assumed nevertheless that the gifts to his relatives would still stand as absolute, and that they did not depend for their validity on the exercise of her volition. As the intention of the testator seems clear from the language of the entire will, it is unnecessary to consider the facts agreed upon relating to the family history and other matters. And in view of our conclusion that the “option” given to the widow related only to the time of payment, it is equally unnecessary to review the evidence tending to show that even if the option related to the validity of the legacies, she had exercised it in favor of the legatees. Ames v. Ames, 238 Mass. 270, 278. In our opinion it was his intention that the plaintiff legatees should take absolute gifts, which became payable upon the death of the widow. “The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.” McCurdy v. McCallum, 186 Mass. 464, 469. Ware v. Minot, 202 Mass. 512, 517. The language of this will distinguishes it from cases like Knibbs v. Knibbs, 236 Mass. 182 and Myrick v. Stowe, 240 Mass. 14, where after an absolute and complete ownership of property had been , given, a limitation over which was inconsistent therewith was held void. See Davis v. Davis, 225 Mass. 311. Nor is our conclusion inconsistent with Aldrich v. Aldrich, 172 Mass. 101, where a bill was unsuccessfully brought to establish a precatory trust. As what we have said with reference to the interpretation of the will disposes of the only question now before us, a decree is to be entered in accordance with this opinion, and the case remanded to the county court for further proceedings. Costs are to await the final decree, and then be determined in the discretion of the single justice. Ordered accordingly.