Brown v. Brown , 1884 Mass. LEXIS 308 ( 1884 )

W. Allen, J.

The question is whether the bequests in the supplemental clause of the will to the three youngest children of the testator are subject to the limitations and restrictions of the bequests to the same persons in the will; that is, whether they are to be in trust for the maintenance and education of the beneficiaries, or whether the children take the legal and absolute interest.

The trustee relies upon the rule stated by Mr. Justice Met-calf in Tilden v. Tilden, 13 Gray, 103, 108, and well sustained by the authorities, that “ it is an established prima facie rule of construction, that an additional legacy, given by a codicil, is attended with the same incidents and qualities as the original legacy.” See Snow v. Foley, 119 Mass. 102; Jarman on Wills (5th Am. ed. by Bigelow), 185; 2 Wms.Exs. (6th Am. ed.) 1405. But we think that rule does not apply to the provision under consideration, and that the application of it would do violence to the intention of the testator.

The supplemental clause was executed on the same day with the will, and apparently as a part of the same transaction, and should be considered as a part of the will rather than as a codicil made subsequently to it. Apparently the testator did not intend to include his interest in the Newton Bank (which is the subject of the additional clause) in the residue given in trust for his two youngest children, but to make a separate disposition of it. His intention in the residuary clause would be expressed by excepting from it his interest in the Newton Bank, and his intention as to that interest by inserting the disposition of it in the will itself, and, so read, it cannot be construed otherwise than as an absolute gift to the younger as well as to the elder children.

After giving small legacies to his three eldest children, and giving $500 in trust for the maintenance and education of his next elder daughter, he gives the residue, except the doubtful interest in the Newton Bank, to his executor in trust for the maintenance and education of his two youngest children, and then divides among all his children anything which may be received from the bank; and this is given “to be divided equally among them,” and the legal interest is given to the younger children in the same words by which it is given to the elder, and there is nothing to indicate that it is to be held in trust, unless the words “ in addition to the sum before named bequeathed to them ” can imply that. The same words are used in reference to the elder children, and are of themselves of very slight significance; their meaning must be determined by the character, the circumstances, and the terms of the bequest. If, for instance, a codicil had given to Etta L. Brown $100 “ in addition to the sum before bequeathed to her,” the intention to make an addition to the trust fund would be presumed. But the provision under consideration relates to a distinct part of the estate, and divides that among all the children in similar terms, expressly giving their shares directly to the two younger, and not to the executor in trust. In the absence of any direction or intimation that the separate shares are to be held under the trusts and conditions of the original legacies, we must find the intention of the testator to be expressed in the words which give the legal estate to the children; and that the three youngest children take the legal title to their shares of the proceeds of the interest in the Newton Bank.

Ordered accordingly.