Bacon v. Gassett , 95 Mass. 334 ( 1866 )

Wells, J.

It is clear that in the distribution of an intestate estate this note of Bacon and his wife could not be treated as an advancement. Barton v. Rice, 22 Pick. 508. But it cannot be doubted that a testator may, by his will, direct that such notes be regarded as advancements, and deducted in making up the shares of the residuary legatees for a division among them. In such case the same mode of distribution would be proper and necessary as when advancements are to be taken into account in the settlement of intestate estates. The note ceases to be a debt to be collected. It is to be included in making up the sum total to be divided, and then is deducted from the separate share. It becomes, to all intents and purposes, an advancement merely; not by force of the statute, nor by virtue of its original character, but made so by the will of the testator. Hall v. Davis, 3 Pick. 450. This case is reduced, therefore, to a mere question of intention. The testator manifestly regarded the money, for which the note had been given, as an advancement to his daughter on her marriage. He so designates it; and he directs the same mode of disposition as would be adopted in the usual cases of advancements. He assigns a reason for having taken the note of Bacon jointly with his daughter, namely, “she being then a minor;” which shows that he did not consider it as a debt due from or to be paid by him. And he declares that “ of course, as my granddaughter, Eleanor G. Bacon, stands in the place of her deceased mother, the note of five thousand dollars, signed by her father and mother, must be deducted from the share devised for her use.” These provisions seem not inly unequivocal, but studiously explicit, as declaring the intention of the testator that the notes should, in all respects, be treated as advancements.

But the defendant Gassett relies upon a subsequent clause, in which the testator declares it to be his will, in case his said granddaughter “ should die without issue, that said note should be given up to him ; and I do accordingly, on the happening of such contingency, give and devise the same promissory note to the said William B. Bacon; ” and contends that this provision requires that until that event shall happen the note must form part of the share of the granddaughter. But this, we think, would be giving to that clause an effect, by mere construction, which was not at all contemplated by the testator. On the contrary, his intention seems to have been to protect Bacon from the possibility that the note should, in any event, be collected or held as a debt against him. It is true, upon the construction to which we incline, that no such provision would be necessary, except in the contingency that the legacy should lapse by the death of the granddaughter, without issue, before the decease of the testator. But there was occasion to provide against this contingency; the testator clearly did intend to provide against it; the terms used are adequate for the purpose ; and the fact that he did not restrict those terms to the precise and technical limits of that necessity, does not justify, certainly does not require, a construction which would give to the clause a double aspect, and make it inconsistent with what appears to be the general purpose of the will. It is urged that this will was drawn by counsel familiar with all the technical principles applicable to such subjects; and therefore it cannot be supposed that these terms were not used advisedly. But the same counsel also drew the several clauses which directed the notes to be treated as advancements, and certainly could not have been unaware of the disposition which that would require to be made of the note of Bacon, if a division should be made in the lifetime of the granddaughter.

We are of opinion, upon comparing all the provisions of the will, that the testator intended the note of Bacon to be cancelled at all events, in the settlement of his estate ; and'the plaintiff is entitled to have a Decree accordingly.