Wentworth v. Bell

Rugg, C. J. The decision of this case calls for an interpretation of a part of clause “ 6th ” of the will of Luther V. Bell, who died in 1862. He left four children, two sons and two daughters. One daughter died a minor, unmarried, without issue, in 1868. One son died on April 3, 1917, leaving as his only heirs two sons. Another son died in 1903, leaving no issue, but a widow to whom by will he gave all his property. The last surviving daughter died on April 14, 1917, in Germany, a widow without issue, testate, but her will has not been probated here. She-was the last survivor of the children and the last surviving life tenant. The point to be decided is the meaning in their application to these facts of the words of clause “ 6th ” which related solely to daughters and which disposes of a fund of which each daughter was given the income during Ufe, viz.: “ And in the event of their decease or that of either of them with issue, then my will is that the portion of each herein devised and bequeathed shall descend to said issue or in default of issue living upon the decease of said daughters or either of them, the portion of said daughters or daughter, shall descend to the surviving sister and brothers and their legal representatives.” Neither daughter left issue and the last surviving daughter had no surviving sister or brothers. [122] The question is whether the sons of the deceased son, who are now the only descendants of the testator, shall take, or whether the property is intestate estate. The duty of the court in the interpretation of wills is to ascertain, so far as possible, the intent of the testator from the words in the will construed in the light of the facts with reference to which they were used. It is not permissible to go outside the language of the will and supply omissions or indulge in conjecture as to a probable purpose in circumstances for which no provision is expressed. There is, however, a general presumption against intestacy. Jones v. Gane, 205 Mass. 37, 43. This will is not drafted with technical nicety. It is plain that the four final words of the quotation from clause “ 6th ” cannot be given exact effect. They can hardly operate as giving a legacy to the executor or administrator of a deceased brother or sister of the last surviving sister. The words “ legal representatives ” in clause “ 9th ” of the will are used as the equivalent of “ issue.” Unless so construed there, they would have slight, if any, effect. There is strong ground for argument that in clause “ 7th ” they are also used in the sense of “ issue.” In other parts of the will issue is employed in its accurate meaning. But that is not decisive of their meaning in clause “ 6th,” since the words are used in different senses in different places in the will. The case at bar falls within the rule of Sanger v. Bourke, 209 Mass. 481. The crucial words in that will were, “ In case of the decease of either of my said children without children or lawful issue, I then will that the income and interest so given as aforesaid, shall in like manner be divided among the survivors, but in case my said children die leaving issue then the capital of such deceased child’s share shall be equally divided among such issue share and share alike to their heirs and assigns forever.” The last survivor died without issue. The- question was whether the corpus should go to issue of other predeceased children or be intestate property. It was held that it was not intestate but should go to the children of deceased brothers and sisters of the last survivor. That would be precisely like the case at bar [123] provided in the present will the final words of clause “ 6th,” viz., “ and their legal representatives,” had been omitted. It hardly seems that the presence of those words ought to make a distinction and render the fund here intestate instead of testate as in Sanger v. Bourke. Moreover, these words may be disregarded as superfluous. Polsey v. Newton, 199 Mass. 450, 454, and cases there collected. The case is distinguishable from Lawrence v. Phillips, 186 Mass. 320, and Shea v. Maitland, 237 Mass. 221. The decree of the Probate Court is affirmed. Costs out of the fund as between solicitor and client are to be in the discretion of the Probate Court. So ordered.