Pope v. Farnsworth , 146 Mass. 339 ( 1888 )

Holmes, J.

This is an action for a legacy of $20,000, brought under the Pub. Sts. c. 136, § 19. The main question is whether the plaintiff, Robert Pope the younger, has an absolute or defeasible interest under the will of Paschal P. Pope. The will provides, that, on the decease of both Robert Pope and his wife, to whom the income of the fund was given for life, the testator’s executors “ will pay over the said twenty thousand dollars with interest and income to their son Robert Pope for his own use and on the decease of the said Robert, if he dies without children as he is unmarried, my executors shall pay over the said twenty thousand dollars to the person who shall be made by this will my residuary legatee.” The plaintiff has survived his parents, is married, and has children.

We are of opinion that the interest of the plaintiff is absolute, and that the provision in case he dies without children is only an alternative direction as to the person to whom the executors shall pay over the fund when the life tenants shall have died, and the contemplated moment comes for terminating the trust and paying over the principal. The governing thought in the sentence is, that at the death of the life tenants the fund is to be paid over; if Robert Pope, the son, is then alive, it is to be paid to him; if he has died without children, it is to be paid to the residuary legatee. Only one payment and only one time for payment are contemplated. It is not intended that, if the executors should have paid over once to Robert Pope, the son, they should get back the fund in a certain event thereafter, and pay it over a second time. Our construction is confirmed by the words in which the payment to the plaintiff is directed: “ the said twenty thousand dollars with the interest and income . . . for his own use.” These words express an absolute gift unequivocally. Capital as well as income is to be for his own use, if it is paid to him. Such a direction is hardly consistent with a construction of the next clause which would subject the fund to a contingent executory limitation over at his decease, in favor of the residuary legatee. See Olivant v. Wright, 1 Ch. D. 346; O'Mahoney v. Burdett, L. R. 7 H. L. 388, 397, 406; In re Luddy, 25 Ch. D. 394.

It is true that the words “ and on the decease of said Robert,” taken by themselves, look to his death at any time; but in view of the rest of the sentence, and the consequences of the different constructions contended for, we should read that and the following language as meaning “ or in the event of Robert having died without children before that time,” &c.

There may be a question whether the phrase “ as he is unmarried ” is to be read as merely explaining why the possibility of Robert’s death without children is contemplated, or whether it ! still further qualifies the contingency, so that the sentence means in case of the death of Robert without ever having had any children because of his being unmarried or while unmarried. The last mentioned event can never happen, as Robert has married and has children. But as the plaintiff must recover for the reasons first given, it is unnecessary to consider this or other questions suggested by the clause.

The executors paid about eight hundred dollars of the principal, partly for a legacy tax and partly to the tenants for life. THe plaintiff then executed a sealed instrument, reciting that these payments (stated to be $308.48 and $491.52) and an investment of $19,200 in the Massachusetts Hospital Life Insurance Company were made at his request, covenanting to save the executors harmless from all other claims on the fund, acknowledging that the payments recited were in full satisfaction of the legacy, and ratifying all the doings of the executors. The plaintiff must stand to his agreement. There is no illegality in a cestui que trust authorizing an act which otherwise would be a breach of trust towards himself, or in his releasing or agreeing to hold harmless his trustee for such an act after it is done.

No authority or release is shown, however, for diminishing the capital directed to be deposited in the Hospital Life Company by $300 in order to secure quarterly instead of annual payments to the tenants for life. This sum must be added to the amount to be recovered.

As the contract with the Hospital Life Insurance Company was directed to be made by the will, and was accepted by the plaintiff in full satisfaction of his legacy, we think that the executors should not be charged with interest upon $18,900 after the death of Julia C. Pope, when it ceased to be paid by the company, until such time as they reasonably could have obtained and paid over the fund. The contract gives the company sixty days after proof of death. If, as stated in the demand, the company was ready to pay when the demand was made, interest may be allowed from that time. Interest will be computed upon the $300 misapplied from the date of Julia C. Pope’s death. The payments heretofore made will be allowed as agreed.

Judgment for plaintiff for $19,200, and interest, to be determined by an assessor.