Holmes v. Coates , 159 Mass. 226 ( 1893 )

Field, C. J.

A bequest for the use and benefit of disabled soldiers and seamen who served in the Union army in the late war of the Rebellion in the United States, their widows and orphans, is a good public charitable bequest. Maimed soldiers and .mariners, as well as orphans, are expressly mentioned in St. 43 Eliz. c. 4; Jackson v. Phillips, 14 Allen, 539; Powell v. Attorney General, 3 Mer. 48; Thompson v. Corby, 27 Beav. 649; Attorney General v. Comber, 2 Sim. & Stu. 93; 2 Perry on Trusts, § 699.

The persons described in the bequest are in most, if not all respects the same as those entitled to receive pensions under the laws of the United States at the time when the will was executed and at the time when the testator died. U. S. Rev. Sts. §§ 4692, 4693, 4702-4706. It is contended that the bequest is void, because it is dependent upon the contents of books of account of the testator, which were not in existence when the will was made. The direction is, that, “ in ease at my decease my books of account shall not show that I have given said sum of five hundred dollars annually for said purpose,” then the executors shall pay over “ such sums of money as will make up in full to the time of my decease said annual amount of five hundred dollars per annum,” etc. See Thayer v. Wellington, 9 Allen, 283, 292; Newton v. Seaman's Friend Society, 130 Mass. 91; Olliffe v. Wells, 130 Mass. 221. We think that the construction of this article of the will is, that the executors are to pay the amount specified unless it appears by his books of account that the testator has paid it in his lifetime. As thus construed, it is a valid disposition of property by a will duly executed. See Treadwell v. Cordis, 5 Gray, 341; Cummings v. Bramhall, 120 Mass. 552; Langdon v. Astor, 16 N. Y. 9.

All the parties who have argued the case agree that for the last year the amount should be apportioned, as the testator lived eight months of that year. Either this is true, or nothing should be paid for that year. As the payments are to be made “ in full to the time of my decease,” a proportional payment for that year is perhaps what the testator intended.

It must be left for a single justice to determine to whom the money shall be paid, and in what way the gift can be made effectual. Decree accordingly.