Noble v. Phelps ( 1861 )

Hoar, J.

The power given to the executor to decide upon the true meaning of the will, in case of any dispute arising respecting it, and making his decision final, is found in connection with those clauses in the will which give to the testator’s daughter the use of certain apartments and furniture, with privileges in the kitchen, cellar, Sic. which could not be defined with absolute precision. Although it is extended by the phrase, “ or any other part of this my will,” we think it obvious that this must be construed to apply only to other similar provisions in other parts of the will which were not precise and definite, and that it could have no application to a specific legacy of a sum of money, payable at a fixed time, and about which there could be no dispute, unless of the executor’s own making, by his failure to perform his plain legal duty.

The legacies of one hundred dollars each were payable, respectively, in one, two and three years from the testator’s death. But if the daughter should marry and die without an heir or heirs by said marriage, within four years from his decease, then each of the bequests, that should not have been paid, is to revert to his estate. We have no doubt the phrase, “that shall not have been paid,” is equivalent to “ shall not have become payable ; ” and that the testator did not contemplate any such contingency as that of the executor’s holding back a legacy which was due, and which he had the means to pay.

The opinion of the judge who presided at the trial was entirely correct, and there must be

Judgment for the plaintiffs on the verdict.