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AMERICAN

LAW REPORTS

ANNOTATED

VOL. 49

FREDERICK H. TEMPLE, Admr., etc., of Emeline M. Evans, Deceased,

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(251 Mass. 231, 146 N. E. 679.)

precatory trust "will and wish."

A gift of property to a friend, "to hold and dispose of as he desires and deems best," followed by a provision, "it is also my will and wish" that at his death, or at any time he may so arrange, the property shall go to a charitable society, subjects the gift to the friend to a precatory trust, so that, upon his death, the property will go to the charity, and not to the heirs of the friend.

[See annotation on this question beginning on page 10.]

APPEAL by respondent Russell from a decree of the Probate Court for Middlesex County (Chamberlain, J.) instructing petitioner as to the disposition of the proceeds of sale of certain real estate and a savings bank deposit devised and bequeathed by his testatrix. Affirmed.

The facts are stated in the opinion of the court.

Mr. G. W. Warfield for appellant Russell.

Mr. A. E. Pillsbury, for Society for Prevention of Cruelty to Animals:

The plain intent and expectation of Mrs. Evans was that the property should not stop with Austin Russell, but should ultimately go to the respondent society, either by the conveyance which he is empowered to make, or upon his death; and no rule of law is in the way of her disposition. Ware v. Minot, 202 Mass. 512, 88 N. E. 1091; Stedman v. Priest, 103 49 A.L.R.-1.

Mass. 293; Welsh v. Woodbury, 144 Mass. 542, 11 N. E. 762; Chase v. Ladd, 153 Mass. 126, 25 Am. St. Rep. 614, 26 N. E. 429; Kent v. Morrison, 153 Mass. 137, 10 L.R.A. 756, 25 Am. St. Rep. 616, 26 N. E. 427; Baker v. Thompson, 162 Mass. 40, 37 N. E. 751; Dana v. Dana, 185 Mass. 156, 70 N. E. 49; American Baptist Pub. Soc. v. Lufkin, 197 Mass. 221, 83 N. E. 401.

If a technical rule stands in the way of the direct disposition of the property which Mrs. Evans obviously intended to make, her words, taken

together, are at least enough to im-
press it with a trust for the society,
now terminated by Austin Russell's
death.

Hess v. Singler, 114 Mass. 56; Warner v. Bates, 98 Mass. 274; Chase v. Ladd, 153 Mass. 126, 25 Am. St. Rep. 614, 26 N. E. 429; Kent v. Morrison, 153 Mass. 137, 10 L.R.A. 756, 25 Am. St. Rep. 616, 26 N. E. 427; Ware v. Minot, supra; Allen v. Hunt, 213 Mass. 276, 100 N. E. 552; Dallinger v. Merrill, 224 Mass. 534, 113 N. E. 279.

The bequest of the $2,000 bank deposit is specific, and as such carries any accretions from the death of the testatrix until paid.

Towle v. Swasey, 106 Mass. 100; Bullard v. Leach, 213 Mass. 117, 100 N. E. 57; Thayer v. Paulding, 200 Mass. 98, 85 N. E. 868; Schouler, Wills, 3060; 3 Williams, Exrs. 11th ed. chap. 4, § 6, p. 1153.

Messrs. Loring, Coolidge, Noble, & Boyd and Howard R. Brentlinger for Temple.

Rugg, Ch. J., delivered the opinion of the court:

This is a petition by the administrator with the will annexed of the estate of Emeline M. Evans, for instructions as to the disposition of the proceeds of sale of certain real estate and of a savings bank deposit which his testatrix, without professional assistance, in a holographic will devised and bequeathed as follows: "First-To Austin E. Russell, of said Medford, Massachusetts, who for long years has been our constant and devoted friend, in recognition of such faithful devotion, I give, devise and bequeath my estate at No. 20 Brooks Park, in said Medford, Massachusetts, together with all goods, chattels and personal property about my home, to hold or dispose of as he desires or deems best. Also the sum of $2,000, now in the Medford Savings Bank. It is also my will and wish, that at the death of said Austin E. Russell, or at any time he may so arrange, the above mentioned property may be given to the 'Society for the Prevention of Cruelty to Animals' in Boston."

The testatrix died February 17,

1923, and the will was admitted to probate on April 11, 1923.

Austin E. Russell, the devisee and legatee named in the will, was unmarried, aged and feeble; he owned property amounting to about $9,000 and had a weekly pension of $15; he had long lived in the Medford house at No. 20 Brooks Park as one of the household of the testatrix. For many years he had been her constant and devoted friend. At the death of the testatrix he was unable by reason of his health to act as executor or to remain in the Medford house. He went to live with a sister and thence to a private hospital, where he died June 28, 1923, never having used or needed for his comfortable maintenance any part of the property mentioned in the first item of Mrs. Evans' will, or its income, except the proceeds of the furniture of the house, in which all other parties had waived any interest in his favor. The house was sold for $5,000 with the assent of all parties in interest, and under agreement that all rights should remain unaffected and as though the estate had not been converted into personalty. At the date of Mrs. Evans' will, in February, 1920, the amount of her deposit in the Medford Savings Bank was $1,671.56, with one semi-annual interest dividend accrued in November, 1919, but not credited on the book. By subsequent deposits and accrual of interest, less withdrawals of $200 on November 19, 1920, and $50 on September 29, 1922, the amount of deposit at the time of her death was $3,416.82. All these facts preceding her death were known to Mrs. Evans.

Henry W. Russell, an heir at law of Austin E. Russell, appeals from the decree of the probate court for the county of Middlesex, whereby the petitioner was instructed: "That the estate of Austin E. Russell has no interest in the property No. 22 Brooks Park, Medford, nor in the proceeds of the sale thereof nor in the account in the Medford Savings Bank; that said society

(251 Mass. 231, 146 N. E. 679.)

[Massachusetts Society for the Prevention of Cruelty to Animals in Boston] is entitled to the proceeds realized from said sale of said property No. 20 Brooks Park with accrued interest; also deposit in said bank to extent of the bequest of $2,000. The bequest of $2,000 is specific and is to be treated as the real estate and passes as indicated to the said society; that said bequest of $2,000 carries with it accrued interest from testatrix's death February 17, 1923, and that any sum of money on deposit in said bank less accrued interest on said $2,000 is due and payable under provisions

said will to Harriet F. Wemyss and said Temple each one-half."

None of the respondents other than Henry W. Russell appealed from the decree of the probate court; it consequently stands as to them. The appellant and the respondent Massachusetts Society for the Prevention of Cruelty to Animals concede that the bequest of $2,000 on deposit in the Medford Savings Bank is specific; that it carries with it any accretions from the death of the testatrix until paid; and that the difference between said $2,000 plus accretions and the total sum of money on deposit in the Medford Savings Bank in the name of Mrs. Evans is due and payable to Harriet F. Wemyss and Frederick H. Temple.

The question for decision is whether Austin E. Russell under the will took an absolute and unqualified estate of inheritance in the property devised, which vested in his heirs upon his death intestate. The pertinent principles touching the interpretation of wills have been stated fully in opinions of this court and need not be rephrased. It was said in Ware v. Minot, 202 Mass. 512, 516, 88 N. E. 1091: "The rule for the construction of wills followed by courts in recent times is to ascertain the intent of the testator from the whole instrument, attributing due weight to all its language, and then give effect to that intent unless prevented by some positive

rule of law, rather than to try to make the interpretation of particular words or phrases in one instrument square with that before given to somewhat similar words used by some one else under other surroundings to accomplish a more or less different end. McCurdy v. McCallum, 186 Mass. 464, 72 N. E. 75. A few combinations of words. have become so fixed in their meaning by long and unvarying use as to be rules of property. But ordinary canons for the interpretation of wills, having been established only as aids for determining testamentary intent, are to be followed only so far as they accomplish that purpose, and not when the result would be to defeat it. Crapo v. Price, 190 Mass. 317, 319, 76 N. E. 1043; Jewett v. Jewett, 200 Mass. 310, 317, 86 N. E. 308. It is permissible also to look at all the material circumstances in the light of which the will was executed in order to comprehend the sense and purpose of the language employed."

It also was said by Chief Justice Gray in Metcalf v. Framingham, 128 Mass. 370, 374: "The decision of this question doubtless depends upon the intention of the testator, as manifested by the words that he has used, and an omission to express his intention cannot be supplied by conjecture. But if a reading of the whole will produce a conviction that the testator must necessarily have intended an interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language of the testator as to carry into effect, as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared."

These words were quoted and given a strong application in Young Women's Christian Home v. French, 187 U. S. 401, 412, 47 L. ed. 233, 237, 23 Sup. Ct. Rep. 184. To the same effect among other of our decisions are Polsey v. Newton, 199 Mass. 450, 85 N. E. 574, 15 Ann.

Cas. 139; Sanger v. Bourke, 209 Mass. 481, 486, 95 N. E. 894; Tibbets v. Tomkinson, 217 Mass. 244, 104 N. E. 562; Eustace v. Dickey, 240 Mass. 55, 73, 132 N. E. 852.

A reading of the will makes it plain that the testatrix had two dominant purposes in writing her first clause, one to help Mr. Russell, and the other to help the Society for the Prevention of Cruelty to Animals in Boston. Both of these purposes were to be accomplished with the same property. They both are grouped under one clause. There are no technical words of inheritance in expressing her benefaction to Mr. Russell. Standing alone, those words would be adequate to pass an absolute absolute ownership. If they are given that meaning, there is no room for the operation of the last sentence of that clause respecting the Society. The collocation and form of the three sentences composing that clause indicate a design on the part of the writer that both purposes should be given effect. After providing for Mr. Russell, she begins the next sentence by saying: "It is also my will." These words words imply imply the thought that the two provisions, so far as concerns testamentary purpose, stand on an equally firm foundation. The clear intent to be gathered from all the words used in the clause is that both Mr. Russell and the Society should share in her benefaction. To construe the first sentence of the clause as creating an estate in fee simple would nullify the last sentence. The will would stand as if that sentence had never been written. Such a construction would violate to that extent the general principle of interpretation that all testamentary words are to be given effect so far as compatible with fixed rules of law. It is apparent, from a reading of the clause as a whole, that the testatrix would have been shocked to have been told as she laid down her pen after writing that clause, that she had given everything to Mr. Russell absolutely if he survived her, and

"will and wish."

had given nothing to the Society. There is no rule of law which requires doing violence to the fixed resolution of the testatrix as disclosed to the mind, unskilled in legal niceties of technical construction, by the words of the will. That plain testamentary purpose can be given effect, in the opinion of a majority of the court, by holding that the gift to Mr. Russell, Trusts-precwhatever its nature, atory trustwas subject to to a precatory trust in favor of the Society. The words "It is also my will" are more than a mere entreaty or expression of desire. They are words of command. They express an imperative testamentary design. Hess v. Singler, 114 Mass. 56, 59. They are not cut down in view of the entire first clause, by the addition of the words "and wish." This result is not in contravention to the recent tendency to narrow the application of the principle as to precatory atory trusts and is in harmony with our decisions, most of which are reviewed in Poor v. Bradbury, 196 Mass. 207, 81 N. E. 882; Dexter v. Young, 234 Mass. 588, 591, 125 N. E. 862.

The case at bar is distinguishable from cases like Bassett v. Nickerson, 184 Mass. 169, 68 N. E. 25; Lovering v. Balch, 210 Mass. 105, 96 N. E. 142, and Knibbs v. Knibbs, 236 Mass. 182, 127 N. E. 885.

Costs as between solicitor and client may be awarded out of the estate in the discretion of the Probate Court.

Decree affirmed.

NOTE.

The question as to when a trust may be deemed to have been created by expressions of a precatory character forms the subject of an annotation appended to RE HOCHBRUNN, post, 10, in subdivision IV. fff, of which will be found cases in which the phraseology employed was similar to that in TEMPLE v. RUSSELL, ante, 1.

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