Dunbar v. Hammond , 234 Mass. 554 ( 1920 )

Pierce, J.

Jane H. Merrill died March 27, 1918, without issue her surviving, leaving a will which has been duly allowed and probated. At the time of her death, in her own right she owned property more than sufficient to pay all debts and expenses of administration, and probably all legacies. She also had a power of appointment under the will of Sally Hammond to dispose of a portion of the principal of a trust estate, which part of the trust fund is more than «sufficient to pay all the debts and expenses of administration of the estate of Jane H. Merrill, and probably all legacies made by her will. All the parties to the controversy agree that the testatrix effectually executed the power of appointment given to her by the will of Sally Hammond. Primarily the will of Jane H. Merrill presents two questions for consideration: (1) Does the will undertake to dispose of such estate as at the time of her death belonged to her absolutely; and (2) Under the will is Ellen Hammond entitled to receive as residuary legatee to her own use all property which belonged to Jane H. Merrill at her death, absolutely, of which by said will she under- . took to dispose, and all property held by the trustees under the will of Sally Hammond over which said Jane H. Merrill had power of appointment, remaining after payment of debts, expenses of administration, and the legacies given by the will óf said Jane H. Merrill.

If the second paragraph of the will be disregarded, the instrument is a plain expression of the intent of the testatrix to dispose of all her estate and all property over which she had a power of disposition after death. Howland v. Parker, 200 Mass. 204, 207. It is contended that the second paragraph of the will is an unmistakable declaration that no property of the testatrix is to ' pass by the will other than that over which she had a power of appointment. The second paragraph is as follows: “ I further declare and make known that it is my intention and purpose by this my will to dispose of such property and estate only as to which I have the power of appointment, or the right to devise and bequeath by my last will and testament, and particularly in the exercise of the power of testamentary disposition conferred upon me under and by the last will and testament of Sallie S. Hammond, late of Boston, Massachusetts.” Such construction would result in partial intestacy; and would be inconsistent with the formal declaration of the first paragraph, the disposition of her lot in the cemetery of Mount Auburn, and the residual bequest of “All the rest and resiffiue of my estate.” We think the will indicates an intention to dispose of all the estate of the testatrix; and we are of opinion that the word “ or” before the words “the right” should not be construed to overcome that intention. Parker v. Parker, 5 Met. 134, 137. Hunt v. Hunt, 11 Met. 88. Clarke v. Andover, 207 Mass. 91, 96. Thorp v. Lund, 227 Mass. 474, 479. So construed, the clause “or the right to devise and bequeath by my last will and testament” operates as a declaration of the intent of the testatrix to dispose of all estate which she held in her own right, as well as that estate or fund over which she had a power of appointment.

The residuary clause of the will of Jane Hammond Merrill reads as follows: “All the rest and residue of my estate I give and bequeath unto my sister, Ellen Hammond, if she survive me, to be by her disposed of in such manner as I may privately direct her.” Ellen Hammond survived the testatrix, who did not before nor after execution of her will give any private or other instructions as to the disposition of the residue. It, is contended by one or more of the defendants that the residuary clause is an attempt to “create a trust which is void because the beneficiaries of such trust are not and cannot be ascertained.” Olliffe v. Wells, 130 Mass. 221.

Under the residuary clause, on settlement of the estate Ellen Hammond was entitled to receive of the executor the legal title to all the estate of the testatrix and the title to all property over which she had the power of appointment, not bequeathed nor consumed in the administration. The words, “to be disposed of in such manner as I may privately direct her,” manifest a clear intention of the testatrix to impose a trust upon the legal estate for the benefit of objects or persons to be privately declared. There is nothing in the will to indicate an intention of the testatrix to benefit persons as distinguished from things, and there is nothing to warrant the supposition of a desire and intent to benefit the legatee if for any reason the testatrix should fail to declare the objects of her bounty. “Two general rules are well settled: 1st. When a gift or bequest is made in terms clearly manifesting an intention that it shall be taken in trust, and the trust is not sufficiently defined to be carried into effect, the donee or legatee takes the legal title only, and a trust results by implication of law to the donor and his representatives, or to the testator’s residuary legatees or next of kin. ... 2d. A trust which by its terms may be applied to objects which are not charitable in the legal sense, and to persons not defined, by name or by class, is too indefinite to be carried out.” Nichols v. Allen, 130 Mass. 211, 212. Minot v. Attorney General, 189 Mass. 176.

It follows that the administrator with the will annexed and the trustees under the will of Sally Hammond are instructed:

1. That the will of Jane H. Merrill undertook to dispose of such estate as at the time of her death belonged to her absolutely in her own right.

2. That the will of Jane H. Merrill undertook to exercise the power of appointment given by article seven of the will of Sally Hammond.

3. Under the will of Jane H. Merrill, Ellen Hammond is not entitled to receive as residuary legatee to her own use all property which belonged to said Jane H. Merrill at her death absolutely, of which by will she undertook to dispose.

4. Under the will of Jane H. Merrill, Ellen Hammond is not entitled to receive as residuary legatee to her own use all property held by the trustees under the will of Sally Hammond over which said Jane H. Merrill had power of appointment or to which she undertook to exercise said power of appointment, remaining after payment of debts, expenses of administration, and the legacies given by the will of said Jane H. Merrill.

5. After the payment of debts, expenses of administration and legacies, the property which belonged to Jane H. Merrill absolutely is to be paid to the next of kin of Jane H. Merrill.

6. The share of Jane H. Merrill in the trust estate under the will of Sally Hammond is payable to the administrator with the will annexed of Jane H. Merrill, to be disposed of by heirs as directed in the paragraph immediately preceding.

7. The remaining requests for instructions become unimportant.

Decree accordingly.