Westgate v. Farris , 189 Mass. 587 ( 1905 )

Braley, J.

The testator, in clause nine of his will, having devised to his wife the use for life of the upper part of the house which they occupied as a home, subsequently added a codicil, in which without making any reference to this clause, he gave to her “ whatever share of my estate she would be entitled to by law if I left no will.”

It is the contention of the respondents that he intended this devise to be substitutional for the provision found in the will.

Where a testator by a will and codicil makes testamentary provision in each for the benefit of the same devisee, generally it is held that the devise is cumulative rather than substitutional, though this rule of construction must yield wherever the express purpose of the testator appears to the contrary. Wainwright v. Tuckerman, 120 Mass. 232, 238, and cases cited. Gould v. Chamberlain, 184 Mass. 115.

The amount of the testator’s property was substantial, and the first provision made for his widow would seem to have been wholly inadequate for her comfortable support in conformity with her position during their married life, and when he came to make the changes shown by the codicil apparently he realized this inadequacy.

Both will and codicil are carefully drawn, for the testator, when disposing of his property, appears to have understood the precise use of language to express his meaning. Whenever he intends to revoke or modify corresponding clauses of the will he says uniformly, “ I revoke and cancel,” or if certain contingencies should arise affecting the estate devised to his grandson then a further provision is made for him which clearly is substitutional. But when he comes to the remaining clauses, having in mind further provisions for his wife and grandchildren, neither of these qualifying words or any equivalent is found.

It is a reasonable inference that if it had been his intention to have taken away the life estate already devised this would have been expressed in appropriate language.

Its rental value could not have been large, and in any scheme for the distribution of his property any diminution by reason of such an incumbrance manifestly would not weigh with the further consideration, that in exercising the right of continuing to live at their homestead, even if free from any burden of making repairs or of taxation, his wife also must have pecuniary resources, and by the codicil he provides ample means for this purpose. The position taken by the respondents, therefore, cannot be sustained, and the construction for which the petitioner contends, that-the devises are cumulative must be adopted as being more consistent with the general scheme of distribution intended by the testator.

The question decided having been presented in a petition for partition brought- by the widow, under the conclusion to which we have come, she is entitled to the use of the upper tenement for life, with the additional right to hold in severalty one undivided third part in fee of the premises described in the petition.

In accordance with the terms of the report an interlocutory decree is to be entered that partition be made accordingly.

So ordered.