Bemis v. Fletcher

Carroll, J. Ida F. Estabrook by the third clause of her will, dated December 28, 1910, gave all the rest and residue of her property to her husband, Arthur F. Estabrook, “ and if he be not living at my decease,” the residue was given “ to those'persons who shall be appointed trustees under my said husband’s will, to whom by his will my husband shall give the residue of his estate in trust ” and to their successors, to be administered with the same rights and powers, and to be disposed of to the same persons or corporations in the same manner “ as shall be provided for the trust established ” by her husband’s will relating to the residue of his estate. By the fourth clause she nominated her husband as executor and trustee, and if he were not living at her death she nominated, by name, as her executors and trustees the three persons named as executors and trustees under her husband’s will. The fifth clause of her will gave authority to the trustees to sell the trust property and to invest the proceeds in real or personal estate. Mrs. Estabrook died November 24,1922, at the age of seventy-two years. Her will was duly allowed by the Probate Court January 12, 1923. The petitioners are now the executors and trustees under this will. The testatrix’s husband, Arthur F. Estabrook, died July 27,1919, at the age of seventy-two years, leaving a will dated December 26, 1905, and two codicils dated December 23, 1909, and September 2, 1910, respectively. This will and the codicils were allowed in the Probate Court September 4, 1919. The petitioners were duly appointed and are now acting as executors and trustees thereunder. . [185] On December 26,1905, the same date that Arthur F. Estabrook made his will, the testatrix made a will which was revoked by her will dated December 28, 1910. In her will of December 26, 1905, she gave the residue of her estate to her husband; if he were not living at her decease, “ to those trustees appointed under my husband’s will to whom by said will he may have given the residue of his estate in trust ” and to their successors, “to be administered according to the terms of the trust established by the will of my said husband relating to the residue of his estate.” By the eighth clause of the will of Arthur F. Estabrook of December 26, 1905, the residue of his estate was left to trustees for the benefit of his wife, she to receive the income during her life, and upon her death the principal to be paid over to forty-eight charities in various amounts. By the codicils to his will the only changes made related to the persons who were named as executors and trustees. When the wills and codicils were executed Mr. and Mrs. Estabrook were married and living in a common home. The petitioners ask that it be determined whether the residuary clause of Mrs. Estabrook’s will of December 28, 1910, constitutes a valid gift for the benefit of the corporations named in the will of her husband. The heirs at law contend that the residue of her estate belongs to them. The intention of Mrs. Estabrook, as disclosed in her will in view of all the circumstances, must prevail unless inconsistent with the rules of law. McCurdy v. McCallum, 186 Mass. 464, 469. Jewett v. Jewett, 200 Mass. 310, 317. Woman’s Seaman’s Friend Society v. Boston Young Women’s Christian Association, 240 Mass. 521, 531. Davis v. Clapp, 242 Mass. 139. Mrs. Estabrook intended that the residue of her estate should go to the charities mentioned in the eighth clause of her husband’s will. When her will of 1910 was made, her husband’s will with the codicils had been executed. She appointed as her executors and trustees, in the fourth clause of her will, Frank B. Bemis, Stedman Buttrick and Frederic R. Galloupe, “ who are named as executors and trustees under my said husband’s will.” In this will, as well as in the will of 1905, the testatrix provided that the [186] residue of her estate should be distributed as the residue of her husband’s estate was to be distributed on her death. Her former will and the will of her husband were executed on the same date, in the year 1905. The same persons witnessed both of those instruments. And the executors and trustees appointed by him were selected by her to serve as the trustees and executors under her will. Her reference in the third clause of the will of 1910 “to those persons who shall be appointed trustees” is nothing more than a recognition of the fact that the trustees named in the fourth clause were to be appointed in the future. Her reference to the trust to be disposed of “as shall be provided,” and the other language looking to the future, are not sufficient to show that she had in mind some future will to be made by him. She had in mind this will made in 1905, then in existence, to be effective on the death of the testator. In our opinion, Mrs. Estabrook intended to incorporate into her will the eighth clause of her husband’s will, as a part of her will, and a valid trust was therefore established to be administered as indicated in his will. The will of Mr. Estabrook was in existence in 1910 when the testatrix’s will was executed. His will was sufficiently identified, and it could be incorporated into her will. “ A testator may refer expressly to a paper already executed, and describe it with such particularity as to incorporate it virtually into the will.” Newton v. Seaman’s Friend Society, 130 Mass. 91, 93. Thayer v. Wellington, 9 Allen, 283. Taft v. Stearns, 234 Mass. 273. She had in mind and referred to an existing will of her husband, a will of which she had knowledge. She did not refer to any will her husband might execute in the future, her reference was to “ my said husband’s will ” and to “ the trust established by my said husband’s will relating to the residue of his estate.” This will of her husband’s was admitted to probate in September, 1919. Mrs. Estabrook did not die until 1922; she made no changes in her will after his death. We need not, therefore, consider what construction should be given to her will, if her husband had made another will after 1910. This event did not happen and the intention and purpose of Mrs. Esta [187] brook should be made effectual to carry out the end she had in view. See Loring v. Blake, 98 Mass. 253, 260; Gray v. Whittemore, 192 Mass. 367, 378, 379. Curley v. Lynch, 206 Mass. 289, relied on by the next of kin, is distinguishable. In that case the testator gave to his wife a power of appointment. She died January 23, 1909, three days before her husband. Her will was made January 15, 1909, her husband’s will was made January 19, 1909. When he made his will he had already read his wife’s will and expressed satisfaction with it. It was held that the provision in the husband’s will for the wife was of no effect, because of her decease in his lifetime; that the power of appointment fell with the life estate. It was also held that he might have incorporated into his own will the provisions made in his wife’s will, if he had so desired, but he failed to do this. He made no reference in terms to a particular will, and did not seek to incorporate into his will the specific provisions contained in her will. In the case at bar there was no power of appointment given by the testatrix to her husband. If he died before her, the property was to go as designated in his will, then in existence, which by reference was incorporated into her will. Atwood v. Rhode Island Hospital Trust Co. 275 Fed. Rep. 513, is not in conflict with what is here decided. Mrs. Estabrook had no power to change the provisions in her husband’s will; she referred to the list of charities mentioned therein, which remained unchanged after the execution of the will; and the will had already been admitted to probate when she died. See Damon v. Bibber, 135 Mass. 458; Matter of Piffard, 111 N. Y. 410. We do not agree with the contention of the Massachusetts Homeopathic Hospital that it is to receive the entire residue of Mrs. Estabrook’s estate disposed of by the third clause of her will. In that clause the residue was “ to be disposed . of to the same persons or corporations, in the same manner, and according to the same terms, as shall be provided for the trust established by my -said husband’s will relating to .the residue of his estate.” She did not mean to add her gift to the residue of his estate; she created a trust fund of her own, independent of that established by her husband, [188] though administered by the same persons, and distributed to the same persons and corporations. Her trust is a “ referential ” trust and is to be carried out as she directed “ to the same persons or corporations, in the same manner, and according to the same terms ” as her husband directed. Her trust was separate and distinct from the trust fund created by her husband. We therefore answer the first prayer of the petitioners, whether the residuary clause of Mrs. Estabrook’s will constitutes a valid gift for the benefit of the corporations named in the will of her husband, in the affirmative. There is no necessity that the trust fund under Mrs. Estabrook’s will should be transferred from her executors to themselves as trustees. As executors of her will they should pay and distribute the residue of her estate among the corporations named in the residuary clause of her husband’s will, and in the same proportion as they take under his will. Bowditch v. Andrew, 8 Allen, 339. Sears v. Choate, 146 Mass. 395. The question of the admissibility of certain evidence offered we do not discuss, because, in our opinion, without considering this evidence the testatrix intended to refer to the existing will of her husband. Costs between solicitor and client are to be in the discretion of the single justice. The executors of Mrs. Estabrook’s will are instructed to distribute the residue of her estate to the same persons or corporations mentioned'in the residuary clause of her husband’s will, they to take in the same manner and according to the same terms as they take under the residuary clause of his will. Ordered accordingly.