Pinney v. Newton

Hamersley, J. We think the testator has disposed of all the residuum. Examining the provisions of the will we find in the first thirteen clauses the following: A specific disposition of substantially all the property which he estimates will belong to his estate at his death, to seventeen legatees, three of them taking a life estate only: A devise to his principal legatee, Miss Gillette, of real estate — apparently all he has except such as may be needed to pay legacies and expenses of settlement: An explanation that in part execution of his purpose to evade the payment of any collateral inheritance tax, he had conveyed to others in trust for himself during life certain bonds and landed properties, a disposition which probably would prove final, although some of said bonds or land might revert to him: A further explanation that after a careful estimate he is convinced that his property remaining at his death will [151] be sufficient to pay all specific legacies and leave a balance to the credit of his estate, without selling the land not specifically devised; but, as such estimate may be mistaken and the whole of his property, personal and real, may prove insufficient to pay in full the specific bequests, he therefore directs that, in such case, all bequests and devises to Miss Gillette be first satisfied in full: A sarcastic pretense that this reminds him of an intended bequest he had overlooked, viz : a bequest to his niece Mrs. Newton, of $100, which bequest (in the event of such insufficiency of assets) he directs shall be paid in full, after the payment of the bequests to Miss Gillette; and in explanation of this bequest and of the insulting manner in which it is made, he fills one or two pages in justifying himself for thus cutting off his sole heir at law, as well as in giving directions and advice to his executors in view of the possibility that Miss Newton’s friends may be disposed to “ make difficulty: ” A provision that in case any one of his legatees should not survive him, the sum bequeathed should be divided between the surviving legatees, except Mrs. Newton, “my intention and will being that she in no case whatever be paid over or more than one hundred dollars.” Having made these specific provisions and explanations, the testator, in clause 14, undertakes to dispose of the remainder of his property which he then had clearly in mind, i. e., the amount of the three legacies given for life only; the bonds or land that possibly might revert to him before his death; the estate real and personal, if any, that might not be needed to pay the specific legacies and expenses of settlement. In execution of that purpose he directs that upon the termination of the first life estate in the legacies given for life, his executors shall pay $1,000, free of any inheritance tax, to Ellen Hayes, and shall give one half of the sum remaining to the Society for the Prevention of Cruelty to Animals, and shall give the other half in equal portions to his legatees then living to whom $1,000 only has been bequeathed; and that upon the termination of each of the other life estates, the amount of each legacy shall be given, one half to the [152] Society for the Prevention of Cruelty to Animals, and the other half in equal portions to the 11,000 legatees then living; he also directs that “ any fund which may still belong to my estate ” shall.be used to pay the collateral inheritance tax on all the amounts above mentioned, and then proceeds to dispose of “ whatever else in the shape of a ‘fund’ may belong to my estate.” The testator then, in clause 15, bequeaths to his favorite legatee Miss Gillette, his furniture and all his personal .belongings, even tq his clothing. •The claim is made, and supported by argument ingenious and plausible, that the word “ fund ” as used by the testator is indefinite, and not broad enough to cover the whole residue of his estate; and also that the language used in describing the disposition of the “fund,” whatever that may mean, inadvertently confines any actual disposition of property to the sums given to legatees for life. We are satisfied from the will itself that it was the intention of the testator to cut off his only heir and next of kin with a bequest of one hundred dollars, to dispose by will of his whole estate, and to divide any residue there might be, in the manner specified in clause 14; and that, whatever difficulties may be suggested, it certainly cannot be maintained that clause 14 is clearly insusceptible of a construction which carries out that intention. The rules of construction in such case are well settled: the clear intent of the testator as expressed in the will should prevail; an.obvious general intent to be gathered from the whole will is rarely defeated by an inaccuracy or inconsistency in the expression of a particular intent; every intendment is to be made against holding a man to be intestate who sits down to dispose of the residue of his property. Alsop v. Russell, 38 Conn., 101; Goodrich v. Lambert, 10 id., 452; Warner v. Willard, 54 id., 472. Applying these rules to this very peculiar will, and reading it in the light of the testator’s mannerisms so patent on its face, and in connection with his general purpose expressed with a clearness and certainty that excludes any possibility of misunderstanding, we cannot doubt that when the testator, in clause 14, wrote [153] “I make the following disposition of (the sums bequeathed to legatees for life and of) whatever else in the shape of a ‘fund’ may belong to my estate,” he intended to and did dispose of all the residuum. Ellen Hayes is plainly included among the “ above named legatees to whom I have in this will bequeathed the sum of only one thousand dollars.” The force of the language which unqualifiedly includes her among those legatees, cannot be weakened by the doubt suggested as to whether she is also included for a different purpose, under the provisions of clause 13, among “the other legatees in this instrument named.” The letter offered in evidence is plainly inadmissible. We think the executors are made trustees of the bequests for life to Mrs. Wilder and Mrs. Howland, and that they may properly and safely commit the trust funds to the care and management of a security company such as is described in clause two. The Superior Court is advised to render judgment answering the questions submitted, as follows:— First: The residuum of the estate is given, one half to the Society for the Prevention of Cruelty to Animals; and one half in equal proportions to the persons named in the will as legatees of the precise sum of $1,000, who were living at the death of Miss Gillette; payable on the final settlement of the estate after the death of all life tenants. Second: The sums given to Miss S. Elizabeth Gillette for life became, upon her death, payable by the executors as follows : One thousand dollars, free of any collateral inheritance tax, to Ellen Hayes, and one half of the remainder to the Society for the Prevention of Cruelty to Animals, and the other half to the $1,000 legatees living at the death of said Gillette; these payments to be made free of any collateral tax. Third: The sum given to Mrs. Urania W. Wilder for life, is payable on her death as follows: One half to the Society for the Prevention of Cruelty to Animals, and the other half to the $1,000 legatees living at her death; and the sum given [154] to Mrs. Marie Howland for life, is payable on her death as follows: One half to the Society for the Prevention of Cruelty to Animals, and the other half to the $1,000 legatees living at her death. All these payments to be made free of any collateral inheritance tax. Fourth: Ellen Hayes is included among the $1,000 legatees, and is entitled to the portion of such legatee upon the division of the life legacies and of the residuum. Fifth: The executors are made trustees of the $4,000 bequeathed by clause three to Mrs. Urania W. Wilder for life, and of the $5,000 bequeathed by clause four to Mrs. Marie Howland for life; they are authorized to commit these funds to the care and management of a security company such as is described in clause two, and exercising due care in the selection of such security company, and in continuing it as agent, will not be held responsible for the defaults of such company in regard to said funds. In this opinion the other judges concurred.