Thissell v. Schillinger , 186 Mass. 180 ( 1904 )

Braley, J.

In the interpretation of the will of the testatrix and in order Jo ascertain her intention all the clauses of the instrument are to be considered, and given effect where this is possible unless such a construction becomes inconsistent with her manifest purpose. Shattuck v. Balcom, 170 Mass. 245, 251.

Between the date of its execution and her death a period of less than a month elapsed, and upon the will being admitted to probate the inventory disclosed the value of the real estate to be largely in excess of the personal property, and it must be presumed that she knew that the latter was insufficient to pay the pecuniary legacies, and that the realty would have to be sold for this purpose.

But the appellees urge that the power to convert given to the executors is not general, and is qualified by a limitation to the use of so much of the proceeds as may be necessary to pay the legacies found in the first fourteen clauses, and after this has been done if the whole has not been used, the remainder is impressed with a resulting trust in favor of her heirs at law, as the fund takes the place of the land out of which it arose. Blake v. Dexter, 12 Cush. 559, 570. Holland v. Cruft, 3 Gray, 162, 180.

It was within her power to limit such sale to so much as might be needed to make up any deficiency after the personalty had been exhausted, but instead of this she directed by the sixteenth clause that the executors should convert the real property into personal, and conferred upon them ample power to accomplish this object.

On resort being had to the language used its significance is apparent, “In order to carry out the provisions of this my last will and testament, I hereby direct my executors . . to . . . sell and dispose of all my real estate . . . By these words no discretionary authority is given, but the direction is imperative, and the executors are absolutely obliged to make the conversion, and its proceeds are thereafter to be held and treated as personal property, for the gifts to the legatees, including the residue, are bequests of money which could only be paid after the sale.

This clause would have no greater force as an indication of her general intention if it preceded the other parts of the will, for it is a well settled rule of construction that words, sentences and clauses may be transposed if by the transposition the purpose of a testator is found, and thereby all the provisions of a will are harmonized and given effect. Claflin v. Ashton, 128 Mass. 441, 443. Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, 98.

If this rule is applied to the will under consideration none of its articles are found to be inconsistent, but all form part of a plainly expressed design for the distribution under it of her entire estate.

After making provision for the improvement and permanent care of her burial lot she makes a number of bequests, all of which are general legacies, and in no instance is there a devise of any portion of the realty, and it may fairly be inferred that she must have intended that her executors should change all her real estate into money, and this united with the personal property provided a common fund from which these legacies were to be paid, and if any residue was left it should go to her brother. Hammond v. Putnam, 110 Mass. 232.

As she gave to the proceeds of the real estate the quality of personalty the equitable conversion may be considered as actually made at her death, and must be distributed as she intended. Hammond v. Putnam, ubi supra. Perkins v. Coughlan, 148 Mass. 30.

By this construction a partial intestacy is avoided and all the provisions of the will are given their appropriate effect, a conclusion to be preferred rather than a result which rejects the fifteenth clause, and construes the sixteenth as giving the executors an authority to sell, but limited to the extent of making up any deficiency of personalty, and after this has been completed gives to the surplus remaining the quality of real property.

It must therefore be held that after the payment of debts, general legacies and charges of administration, the residue is to be paid to Charles Schillinger, who takes an unlimited use of the gift; as the testatrix by the first clause of her will had created a trust for his benefit, and if she had intended a similar restriction in his enjoyment of her further bounty, she would not have employed language the legal effect of which was sufficient to vest in him a full and unrestricted right to the possession of’ the principal. Homer v. Shelton, 2 Met. 194, 206. Howland v. Howland, 100 Mass. 222. Taggard v. Piper, 118 Mass. 315. See Chase v. Chase, 132 Mass. 473; Sherburne v. Sischo, 143 Mass. 439, 442.

The decree of the Probate Court must be reversed, and a decree entered in accordance with this opinion.

So ordered.