Washburn v. Sewall , 45 Mass. 63 ( 1842 )

Shaw, C. J.^*

Instead of going at large into the various considerations, arising on the bill and answers, the parties have agreed upon a statement of facts, and thereupon presented particular questions for the consideration of the court; it being understood, that after the decision of these questions, the subject is to be referred to a master.

It appears that Margaret Tucker, the complainant’s testator, made her will on the 8th of December 1831. On the 8th of December 1832, she made a codicil to her will; both being duly executed. In respect to this codicil, which she declares to be annexed to her said will, she says : “ And I do order and direct that it shall be taken and considered as and for part of my said last will and testament, which will and testament, in all respects, I do by this my codicil ratify and confirm, save and except so far as the same shall be revoked or annulled by this my codicil.” This language is precise and explicit; and yet it does nothing more than declare, in express terms, that which would have been the legal effect of the execution of the codicil, without such declaration.

By this codicil, she makes the following bequest: [The codicil was here set forth, as ante, p. 65.]

1. The question is, whether this legacy of $15,000 to Mr. Sewall, in trust for the sister and children, is to be postponed to the payment of the legacies contained in the will, if the assets of the estate are insufficient to pay the whole. The court are of opinion, that the legacies in the original will are to have no preference over this contained in the codicil, either as to ulti mate payment, or as to the time of payment; but that the codicil is to have the same effect, as if the legacy therein given had been expressed in the original will. The original will and codi’ cil together make one last will, in the same manner as if the original will were written anew, embodying the codicil, and then the whole executed anew. The original will is republished and takes effect, in all respects, as if executed at that time ; and all previous intentions, inconsistent with the terms and the legal operation of the codicil, are revoked and annulled by the codicil.

The main argument, however, on which it was contended that-this legacy of $ 15,000 was to be postponed to those contained in the will, is founded on the provision, that this shall be paid before any portion of the residuary bequest shall be paid. The inference proposed to be drawn from this is, that this legacy is to be paid out of the property which, by the residuary bequest, would be payable to the city, and no other.' But this is not a just inference. This is only another instance of expressing, in terms, what would otherwise have been the legal effect of this bequest. As the gift to the city was of the residuum,' after all other legacies paid, it would have followed of course, that this legacy of $ 15,000 would have preference of the residuary bequest, and diminish the amount of it. In that sense, and in no other, would it come out of the residuum. It was probably inserted, ex majori paútela, to avoid all dispute and all question on the subject.

The court are of opinion that this $ 15,000 bequest, in trust to Mr. Sewall, is to stand on an equal footing with all other pecuniary legacies contained in the will, and is to be paid proportionably with them, if the property is insufficient to pay all of them in full. We say on the same footing with the other pecuniary legacies ; but if there are gifts of specific chattels, or the release of debts, or other bequests of a like nature, they may stand on a different footing, when it becomes necessary that legacies abate.

2. One other question was discussed, namely, whether interest shall be computed on the legacies when the estate is not sufficient to pay them all ; and if so, at what rate and for what time. We think this question is answered by the will. After giving many pecuniary legacies, and in most cases providing that the income shall be paid to certain persons for life, and after-wards that the principal shall be distributed, the testator proceeds *o recite that most of her property is to be derived from her father’s estate, which is unsettled, and which, being incumbered and charged with annuities, may remain long unsettled, so as to render it impracticable immediately to pay the legacies given by her will; and she directs her executor to receive the income coming from her father’s estate, from time to time, and allow her share of the estate itself to remain entire in the hands of her father’s legal representatives, for such length of time as he may think expedient; and she directs him to hold, out of her other property, for Charles Cole, &c. at the rate of five per cent, per annum, and to pay out interest annually, at the same rate, on all the other money legacies thereby bequeathed, except that no interest is to be paid to the city of Boston. She then further provides, that in those cases in which the income is to be paid to one person during life, and on his decease, the principal is given to others, interest at 5 per cent, is to be paid to the first, instead of income, if the money is not invested, so long as the person entitled to the income shall live, and then the same interest to the person entitled to the remainder, until the principal is paid. Then follows this material provision : “ Interest at the rate aforesaid (5 per cent.) is to commence immediately after my decease, on all the money legacies hereby bequeathed, except that no interest shall be paid to the city of Boston.” This puts these payments of income or interest precisely upon the footing of annuities, commencing with the testator’s decease. By this provision, the interest is made part of the legacies, and is to be added to them, to ascertain the aggregate amount, to be paid in full if the estate is sufficient, and before any residuum can exist. For the reasons already given, the legacy of $15,000 is put by the codicil upon the same footing of equality with all the other pecuniary legacies ; and of course interest is to be computed upon it, at five per cent., from the testator’s decease.

* Hubbard, J. did not sit in this case.