Gould v. Chamberlain , 184 Mass. 115 ( 1903 )

Morton, J.

This is an appeal from a decree of the Probate Court for Suffolk County upon a petition for instructions by the executors of the will of Mellen Chamberlain. The single justice who heard the case affirmed the decree, and reported the case to this court for its determination. The questions are whether certain legacies given in the codicil are cumulative or substitutional in respect of legacies given in the will to the same persons, and whether certain evidence admitted subject to the exceptions of the heirs at law was rightly admitted. We take up the question of evidence first.

1. The evidence objected to was that the testator knew after August, 1898, which was before the date of the will, that he was living on a steadily diminishing principal, and that his expenses annually exceeded his income at the rate of $800 a year; that, subsequent to the execution of the will and prior to the execution of the codicil, he was told by his attending physician that with good care he would live through the summer of 1900 and probably into the fall, and that he replied that in such case he would make greater inroads upon his principal than he had expected to; and that twice after the execution of the will and before the execution of the codicil he consulted one or more of the persons named as his executors on the question whether his estate was sufficient to carry out the provisions of the will, and said on these occasions that he doubted whether his estate was sufficient to carry out the provisions of his will.

It is well settled that the situation and circumstances of a testator may be shown in order to enable the court to put itself as near as may be in his place and ascertain what he intended to express by the language used. Crocker v. Crocker, 11 Pick. 252, 256. Popkin v. Sargent, 10 Cush. 327, 330. Morse v. Stearns, 131 Mass. 389. Boys v. Williams, 2 Russ. & Myl. 689. Martin v. Drinkwater, 2 Beav. 215. If every word had only one meaning, and was incapable of being used or understood in any other sense, there would be no occasion for the introduction of such testimony. But language is far from having such certainty, and hence the necessity that in order to correctly interpret it the court should understand the circumstances under which and in reference to which-it ivas used. A testator’s declarations of his intentions are inadmissible, though logically they would seem to be the best evidence obtainable. They are excluded, however, by reason of the statute, which requires wills to be in writing, and also of the rule that forbids the introduction of paroi evidence to alter or vary written instruments. In the present case the evidence that was admitted was not evidence of statements by the testator of his intentions, but was evidence tending to show a knowledge and appreciation on his part of his situation and circumstances and as such was clearly admissible.

2. The question whether the legacies in the codicil are to be regarded as cumulative or substitutional is one of intention. In Wainwright v. Tuckerman, 120 Mass. 232, 238, it is said that, “ 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.” See also Bates, petitioner, 159 Mass. 252, 257. Taking into account the evidence of the statements of the testator and his knowledge of his circumstances it seems to us clear that the legacies in the codicil, so far as given to the same persons to whom legacies are given in the will, are to be regarded as substitutional, rather than as cumulative. It is not reasonable to suppose that he could have intended those legacies to be in addition to the legacies already given when he had in effect expressed his doubts whether the estate was sufficient to pay the legacies already given. The more natural interpretation of the codicil is that the testator intended it as the last and final expression of his purposes in regard to the persons named in it, and as taking the place as far as it went of the will. The codicil itself, it seems to us, bears out this construction. Although it begins by saying that it is a codicil to his last will and testament, and that is the general character of the instrument, it purports also to be a disposition of the whole estate, real and personal, of the testator, as is shown by the phrase, “ my estate real and personal I bequeath as follows: ”, which is copied from the will. The reasonable explanation of this language is that the testator intended by it to signify that the legacies which follow were to be all that the several parties named were to receive out of his whole estate. Again, the language of the codicil is copied from corresponding clauses in the will, — and this has been held to indicate an intention to substitute in such cases the second legacy for the first. Suisse v. Lowther, 2 Hare, 424, 432. Moreover the words “ out of the first monies that shall come to the hands of my executors ” in the will and codicil, and the words “ which shall first appear to be a residue thereof ” in the codicil, which words are used in each instance in regard to the legacy to Mrs. Whitman, and the general scheme of the will tend to show, we think, that it was the intention of the testator that the savings bank deposits, bonds and other securities should constitute the fund from which the cash legacies should be paid. This intention would or might be defeated in part at least if the legacies given in the codicil are regarded as cumulative.

It is no doubt true, as the heirs at law contend, that a codicil revokes and changes a will only so far as the intention to do so is manifest. But as already observed, we think, that it was the intention of the testator to substitute the legacies given in the codicil for those given to the same persons in the will, and that this is manifest from the will and codicil and the evidence that was admitted. Very likely if it had occurred to the testator he would have said in so many words that the legacies given in the codicil were in substitution of those given in the will. But the fact that he did not do so, and that some of the cash legacies given in the will, including one to his namesake, are not referred to in the codicil does not necessarily show that the legacies in the codicil must be regarded as cumulative in respect to those persons who are named in the will. If the case of Wilson v. O'Leary, L. R. 7 Ch. 448, relied on by the heirs at law, is to be regarded as laying down the rule as “ a positive rule of law of construction,” that “ gifts by two testamentary instruments to the same individual are to be construed cumulatively,” (p. 454) then all that need now be said of it is that that is not the law here. But even in England there are cases which hold, as we do, that the question is one of intention, (Gillespie v. Alexander, 2 S. & S. 145, Martin v. Drinkwater, 2 Beav. 215, Fraser v. Byng, 1 Russ. & Myl. 90,) and that where it appears that the second legacy was intended as a substitute for the first it will be so construed. Cases supra.

The result is that we think that the decree of the Probate Court should be affirmed.

So ordered.