Wainwright v. Tuckerman , 120 Mass. 232 ( 1876 )

Gray, C. J.

When legacies are given by different instruments, the general rule is that the second is to be treated as additional to the first, in the absence of anything signifying a different intention; but in this, as in all other questions of construction of testamentary instruments, the apparent intention of the testator must be the guide of the court. These elementary rules are generally recognized. It is sufficient to refer to a few cases of the highest authority. Hooley v. Hatton, 1 Bro. Ch. 390, note ; S. C. 2 Dick. 461 ; Lofft, 122. Coote v. Boyd, 2 Bro. Ch. 521. James v. Semmens, 2 H. Bl. 213. Moggridge v. Thackwell, 1 Ves. Jr. 464. Heming v. Clutterbuck, 1 Bligh N. R. 479. Fraser v. Byng, 1 Russ. & Myl. 90. Russell v. Dickson, 2 Dru. & War. 133 ; S. C. 4 Irish Eq. 339 ; 4 H. L. Cas. 293.

It would serve no useful purpose to review in detail the multitude of cases cited in the elaborate arguments at the bar. All of them, on examination, are quite distinguishable from the case before us ; and many of them, as justly observed by Lord Chancellor Sugden in Russell v. Dickson, above cited, show a disposition to get rid of the difficulty of determining the real meaning of the testator, by holding legacies to be cumulative, and thus to cut the knot rather than to untie it.

In the present case, the will contains a bequest of $5000 to John F. Tuckerman, in trust, to pay the income to S. Salisbury Tuckerman for life, and after his death to convey the principal in equal shares to his wife and daughter; a devise of the house in Gloucester to the wife for life, with remainder to her issue and a, residuary devise and bequest to other relations of the testatrix.

By the second codicil, the testatrix bequeaths $7000 to John F. Tuckerman and Gustavus Tuckerman, in trust, to pay theincome to S. Salisbury Tuckerman, with no provision as to the remainder after his death; and devises the house in Gloucester to him.

The intention of the testatrix that the provisions of the second codicil should be a revocation of and substitute for the sixteenth and seventeenth clauses of the will is apparent, 1st, from the improbability that she would create for the benefit of S. Salisbury Tuckerman two distinct trusts of moderate sums, and differing only, so far as he is concerned, in adding a trustee in the second to the one named as sole trustee in the first; 2d, by the devise to S. Salisbury Tuckerman, in the codicil, of the house in Gloucester, which by the will had been devised to his wife and her issue,—thus necessarily, and without express words of revocation, superseding the devise in the will, because inconsistent therewith; 3d, by the fact, not of itself decisive, but entitled to some weight, that the legacy in the codicil to Alice Comnisky is most explicitly declared to be additional to the legacies previously given to her.

It is unnecessary to determine how far the facts agreed are to be taken into consideration; because, to say the least, there is nothing in them to weaken the conclusion required by the provisions of the instruments themselves.

It follows that the bequest of $5000 by the will must be held to have been wholly revoked by the second codicil; that S. Salisbury Tuckerman is entitled to the income of $7000 only; and that the residue of that sum after his death will go to the residuary legatees. Decree accordingly.