Rice v. Boston Port & Seaman's Aid Society

The rule for solving the principal question raised in this case is well settled. As laid down in Ridges v. Morrison, 1 Bro. C. C. 389, by Lord Chancellor THURLOW, it is, "that, where a testator gives a legacy by a codicil as well as by his will, whether it be more, less, or equal, to the same person who is legatee in the will, it is an accumulation." This rule was adopted from Hooley v. Hatton (see note at end of Ridges v. Morrison, 338), which case, Lord THURLOW observed; was examined with abundant care; and he accompanied that observation with a remark that it was unnecessary to repeat the cases after reading the very able opinion of Mr. J. ASTON, which he said, contained the whole doctrine of the law upon the subject.

Mr. Roberts sums up the rule, as established by the decisions, in these concise words: "The state of the presumption, according to the varying circumstances of the case, seems to be settled by the result of the authorities upon the following criteria, viz.: Where the same specific thing or corpus (as a diamond ring where the testator has but one) is twice given to the same person, either by the same instrument, or by different instruments, then, in the nature of the thing, it is but a repetition. Where the same quantity, as 100l., is twice given by the same instrument, the presumption simpliciter is against the legatee; but where the same quantity is given by the same instrument, with any additional cause assigned for it, or with any material circumstance of variation accompanying the second gift, the presumption is turned against the executor in favor of the accumulation. Where equal sums are given in two distinct writings, or a larger after a less, or a less after a larger, the latter gift is construed an accumulation.

"But though the presumption in a case, wherein two legacies of the same sum or quantity occur in distinct instruments, leans against the executor, yet it is only a presumption simpliciter, and is turned the other was where the same cause is expressly assigned in both instruments for the gift, without any additional reason." 2 Rob. on Wills 8, citing Menochius de presumptionibus, lib. praes. 128, No. 4, 13, 14, and Swinb., part 7, ch. 20, fol. ed. 550.

The same rule is laid down in DeWitt v. Yates, 10 Johns. 156, by KENT, C. J., in these words: "The general rule on this subject, from a review of the numerous cases, appears evidently to be, that where the sum is repeated, in the same writing, the legatee can take only one of the sums bequeathed. The latter sum is held to be a substitution, and they are not taken cumulatively, unless there be some evident intention that they should be so considered, and it lays with the legatee to show that intention and rebut the contrary presumption. But where the two bequests are in different instruments, as by will in the one case and by a codicil in the other, the presumption is in favor of the legatee, and the burden of contesting that presumption is cast upon the executor. The presumption either way, whether against the cumulation, because the legacy is repeated in the same instruments, or whether in favor of it, because the legacy is in different instruments, is liable to be controlled and repelled by internal evidence and the circumstances of the case."

The question of cumulative legacies has often arisen in the English courts, and has been very learnedly and ably discussed by the judges of those courts. We have been cited to no case, in this or the other New England states, on the subject, by counsel, in their briefs or arguments. I am not aware that this question has until now been before the courts of this state.

The question was familiar to the civil law, which required the clearest evidence of intention to give double legacies when the repetition was in the same instrument. Dig. 30, 1, 34.

Suisse v. Lowther, 2 Hare 424, and Lee v. Pain, 4 Hare 201, are cases very much in point. In the former case, Sir JAMES WIGRAM, V. C., remarked, — "The argument against the cumulative character of the legacy, given by the codicil I am now considering, was founded, first, on the coincidence in amount between the two former legacies and the latter; and, secondly, on the fact that the other legacies given to Mr. Croker and others in the same codicil have the word ``additional' appended to them, while in the legacy to Suisse that word is not used. Leaving out the introductory part of the codicil, the question would certainly arise, whether the effect of the word ``additional' to some of the gifts, and omitted in that to the plaintiff, would be to leave his legacy as a substitution for prior gifts. The cases, however, have expressly decided the point, that where there is nothing but the circumstance of omitting such words, the court does not consider it sufficient to control that which prima facie is the meaning of the bequest. Where the mere bounty of the testator is the only apparent motive for the bequest, and no other is expressed, the rule is that the legatee shall take in addition."

Lee v. Pain, supra, is a leading English case, and one on all fours with this upon the question of cumulative legacies. By her will, the testatrix, amongst other legacies, gave to thirteen persons, who are named in one sentence, £ 100 apiece: Mr. Brown was one of them. By the first codicil, after varying some of the bequests in her will, and giving to the trustees of the chapel on Clapham Common, at which she attended, the sum of £ 100, to be laid out for the benefit of the chapel, she gave Mr. Brown, describing him in this place as "minister of the said chapel," the sum of £ 100, and then she confirmed her will. By her third and fourth codicils she gave legacies to Mr. Brown, expressed to be in addition to what she had before given him. The question arose upon the will and first codicil. The master to whom the papers had been sent considered that the legacy in the first codicil was a mere repetition of that in the will, and allowed Mr. Brown one legacy of £ 100 only, namely, that in the first codicil. Sir JAMES WIGRAM, V. C., held that Mr. Brown was entitled to both legacies, and remarked, — "The legacies being given in two different instruments, the legatee is entitled to both, unless the effect of the two separate gifts can be taken away by something to be found in the construction of the second instrument, or by presumption of law. If each of the instruments simply gives a legacy to the same individual, it would manifestly contradict the effect of one or other instrument if the legatee were not allowed to claim both legacies, and, accordingly, he would in that simple case be entitled to both; and as the right to both legacies is in such cases found in the construction and effect of the instruments, no extrinsic evidence is admissible to prove that the legatee was intended to take one legacy only. * * * The first circumstance relied on in support of the report was, that in the first codicil the testatrix has expressed that some of the legacies thereby given, are given in addition to those given by the will, and that that expression is not used in the bequest to Mr. Brown; and cases were referred to in which stress has been laid upon like expressions. It would be difficult to say, in the abstract, what degree of weight is due to an expression like this. The words ``in addition' do not in themselves add anything to the effect of a simple bequest without those words. The legacies would be additional without them. The question is not, is it was put in the argument, whether I am to reject those words, but whether I am to give a particular bequest less than its proper operation, only because superfluous words are used in another bequest. The argument cannot be carried beyond that. It arises only out of the contrast between two different forms of bequest, to one of which the words, are, to the other of which they are not, applied, — raising, it is said, an inference that the intention in the two cases must have been different because the forms of expression are so. In the simple case of legacies by will to each of two individuals, A and B, and no other legacies in the will, and of a codicil giving legacies to the same individuals, and one only of those legacies (the legacy to B) expressed to be in addition to the legacy given him by the will, the question would arise whether less than the proper legal effect was to be given to the bequest to A, only because superfluous words were used in the bequest to B. But whatever effect might be given to the expression ``in addition' in that simple case, if any other circumstances appeared in favor of A's claim to both legacies, — as, for example, if the will contained legacies to C, D, and E, as well as to A and B, and C, D, and E were not named in the codicil, — a very different question would arise. For the argument in A's favor would then be, Why name A in the codicil and not name C, D, and E also, unless A was intended to take under the codicil as well as under the will? [See Ves., Jr., 473.] And in the face of such an argument, it might be difficult to deprive A of the additional legacy which the law gave him. The courts certainly have laid little stress upon such words. Perhaps it would not be going too far to say that they never have been relied upon in judgment, except to confirm or rebut reasoning arising out of other parts of wills. I do not think any case can be produced in which the court has acted upon such words alone in depriving a legatee of a legacy given him under a second instrument."

Judge REDFIELD, in his work (2 Redf. on Wills, ch. 13, sec. 51), remarks, — "It is obvious that each particular case will commonly afford some ground of conjecture more or less satisfactory, whether the naming of the gift more than once is a mere repetition, or is for the purpose of enhancing the bounty. It must therefore be admitted, in the language of an eminent judge (Ch. Jus. HORNBLOWER, in Jones v. Creveling, 4 Har. 127), that, notwithstanding all the nice distinctions which have been taken by the courts upon this subject, we must come at last to the plain, common sense question, What was the intention of the testator, as indicated by his language, viewed in the light of surrounding circumstances?"

Arabella Rice executed her will May 18, 1867. The twelfth clause of the same is as follows: "Twelfth. I give and bequeath to the following named charitable societies in Boston, in the county of Suffolk and state of Massachusetts, the sum of five thousand dollars ($5,000) each, to wit: To the Association for the Relief of Aged and Indigent Females, to the Channing Hospital for Sick and Destitute Women, to the Society for the Prevention of Pauperism, to the Seaman's Aid Society, and to the Boston Dispensary: the annual income of each of said bequests is to be applied by said societies to the purposes to which they are respectively instituted, and the principal of each is to be kept and invested as a permanent fund."

On the second day of July, 1868, she executed a codicil, written by herself, in the room where her will was kept. By the first clause, she gave $2,000 more to the fund for the Howard Benevolent Society, and $2,000 more to the Domestic Missionary Society in Portsmouth.

By the second clause she gave $10,000 more to the fund for a free public library in Kittery, Me.

The third clause is as follows: "Third. I give and bequeath the sum of five thousand dollars to each of the following societies in Boston, in the state of Massachusetts, viz.: The Howard Benevolent Society, the Boston Provident Association, Boston Seaman's Aid Society, House for Aged Men, Consumptives' Home, the Massachusetts Infants' Asylum, and the Massachusetts General Hospital — the five thousand dollars ($5,000) to be appropriated entirely to free beds in the Massachusetts General Hospital."

The executor contends that the legacy given to the defendants by the codicil is substitutionary for the legacy given to the defendants by the will; that, in fact, the defendants' name was written in the codicil by mistake, she not remembering that it had been already included in the will. In support of this theory the executor advances two arguments, — (1) that founded on the alleged character of the testatrix, and the symmetry and method with which her will is drawn; and (2) that founded on the intrinsic evidence furnished by the context of the will and codicil. These two arguments, if well grounded, it seems to me, are inconsistent with and defeat each other. For the purpose of examining the soundness of these positions, I adopt a convenient classification of the legacies given by the will and codicil, furnished in the defendants brief.

The will contains 16 clauses.

1. The testatrix gives equal legacies to her first cousins, as a class; and

16. She makes the same persons, i. e., her first cousins, her residuary legatees, dividing the residue equally amongst them.

2-6. She gives equal legacies to several persons, variously described as first and second cousins of her late father and as relatives of her own, and to Gov. Goodwill, not described as a relative. This shows equality between different classes of legatees, and not equality between legatees of the same class.

7. She gives equal legacies to four charitable societies of Portsmouth.

8, 9. She gives like legacies to a literary and a religious society.

10. She gives a much larger legacy, viz., $20,000, to another literary society.

11. She gives the Insane Asylum at Concord $20,000.

12. She gives five charitable societies of Boston equal legacies; but the amount is larger than the legacy to the Portsmouth charitable societies.

13. She gives a charitable society — the "Sailors' Snug Harbor," whose object is the same as that of the defendants' — the care of seamen — a legacy four times as large as that given the defendants in clause 12.

14. She gives a Boston literary society a like legacy to that given in clause 8 to the Portsmouth literary society.

15. She selects out two of her twelve first cousins, and gives to them, by name, an ancient Bible, ring, and certain articles of silver and china ware, heirlooms of the family.

Taking the facts as they appear in the will, we find. —

1. That the testatrix gave a class of relatives, in the same degree, equal legacies.

2. To relatives not of the same degree, and to a stranger, equal legacies.

3. To literary societies of different places, equal legacies.

4. To charitable societies of different places, unequal legacies.

5. To some charitable societies of the same place, equal legacies.

6. To other charitable societies of the same place, unequal legacies.

7. To two of twelve relatives, designated by name, specific legacies of certain articles of special value, from the long associations connected therewith.

I do not find here any evidence of a systematic plan of disposing of her property, such as excludes the idea that she had no preferences among her relatives. On the contrary, two of her first cousins are preferred above the other tell in disposing of her Bible, ring, and silver and china ware, — articles for which she evidently cherished feelings of attachment, from their having been handed down in the family for several generations. The legacy to the Sailors' Snug Harbor of $20,000, a sum four times larger than that given seven other charitable societies in Boston, and given to a society of like objects with the defendants', indicates that she took a special interest in the welfare of seamen, and in the efforts to save them from the degrading influences by which they are too often surrounded. Can it be said that there is any limit which can be affixed to her bounty in this respect?

But, granting that the will shows all the systematic plan that is claimed for it, the codicil unmistakably overturns it. By the seventh clause of the will, she gives to the Portsmouth Marine Society, to the Domestic Missionary Society, to the Howard Benevolent Society, and to the Humane Society, all charitable societies of Portsmouth, the sum of $3,000 each, the principal to be invested and preserved as a permanent fund, and the annual income only to be expended for the charitable purposes of said societies respectively. By the first clause of her codicil, she gives "$2,000 more to the fund for the Howard Benevolent Society, and $2,000 more to the Domestic Missionary Society in Portsmouth, N.H." These two societies are thus preferred over the Marine Society and Humane Society, mentioned jointly with them in the seventh clause of the will, and over all the other charitable societies named in the will, including the defendants if the plaintiff is correct, or except the defendants if the defendants' position is correct. The use of the word "more" clearly indicates her intention to do just what the law would presume in the absence of that term; that is, that the sum mentioned in the codicil is in addition to the sum given in the will. Lee v. Pain and Suisse v. Lowther, supra. The term was unnecessary, and has no significance, except so far as it throws, light upon her intentions in respect to the legacy in question.

In the second clause of the codicil she gives $10,000 more to the fund for a public library in Kittery, Me.

Thus far in the codicil the use of the word "more" was appropriate, because the legacies in the first and second clauses of the codicil were in fact in addition to legacies given to the same beneficiaries in the will; and although, as we have seen, it was unnecessary, yet it changed no legal inference, and only served to indicate clearly that the testatrix was desirous of increasing the sums given in her will to some of her legatees. We now come to the third clause, by which she gives $5,000 to each of seven charitable institutions in Boston — the third one mentioned being the defendants. As neither of the other six had been mentioned in the will, and are now made legatees by her for the first time, it would not only have been, as to them, inappropriate, but inaccurate, to have inserted the word "more" in the third clause of the codicil. There is no place in the sentence where the word could have been inserted so as to apply to the defendants and not to the other six societies, without reconstructing the whole sentence. For some reason, probably because they were all Massachusetts and Boston societies, she included them all in the third clause of the codicil. The defendants could not be conveniently included in the first clause, because the sum which she wished to give to the two Portsmouth societies mentioned therein was $2,000 each; nor in the second clause because the sum given the town of Kittery was $10,000. But the additional sum which she wished to give the defendants being the same as that given the other six Boston societies ($5,000), the natural and convenient place to insert the defendants' name was in the third clause, with the other Boston societies, to whom she gave the same amount. It is true, she might have added a fourth clause for the mention of the defendants' society if the gift to them was intended to be cumulative; and so, too, she might have inserted the words that the legacy was substituted for that given in the will, if she had chosen to do it in that way; — for it will be observed that by the twelfth clause of the will the sum bequeathed was to be invested, and the income only used for the charitable purposes of the society, while by the codicil the gift is simpliciter, and both income and principal are subject to the uncontrolled disposal of the defendants for the charitable purposes of their society. And it may well be assumed that the testatrix, being a woman of intelligence and ability, with her will before her, or at least familiar with its contents, and writing the codicil herself without aid from a lawyer, intended the second legacy of $5,000 to be at the disposal of the society without the restrictions with which she had surrounded the first legacy. How else can it be explained that the five Boston societies mentioned in the twelfth clause of the will are allowed to expend the income only of their legacies, while the six other Boston societies mentioned in the third clause of the codicil were not restricted in the same manner? Is not the inference plain, that having, some fourteen months after the execution of her will, some $50,000 more to dispose of, probably the income during that period of her large estate, she intended that the first legacy to the defendants should remain as a lasting monument to her memory with the unfortunate men that would be relieved from year to year from the income of the legacy given in the will, while the second legacy would remain to be applied to such immediate and pressing necessities as the wants of the society might imperatively demand? Is not this a case of a double legacy, "with a material circumstance of variation accompanying the second gift, so that the presumption is turned against the executor in favor of the accumulation"? 2 Rob. on Wills 8. Are these legacies ejusdem generis? If not, then the rule is, that that fact tends to raise a presumption that they were intended to be cumulative. Masters v. Masters, 1 P. Wms. 421; 2 Redf. on Wills, ch. 13, sec. 9. Where one of the sums is given absolutely, and the other only contingently, they will be regarded as distinct gifts. Hodges v. Peacock, 3 Ves. 735. So where the gifts become payable at different times. Ridges v. Morrison, supra; Currie v. Pye, 17 Ves. 462; Hurst v. Beach, 6 Madd. 351. In the latter case, Sir JOHN LEACH, V. C., said, — "I think the true result of the decisions, as they apply to the present point, is to be stated thus: Where a testator leaves two testamentary instruments, and in both has give a legacy simpliciter to the same person, the court considering that he who has twice given, must, prima facie, intend two gifts, awards to the legatee both legacies; and it is indifferent whether the second legacy is of the same amount, or less, or larger, than the first; but if in two instruments the legacies are not given simpliciter, but the motive of the gift is expressed, and in both instruments the same motive is expressed, and the same sum is given, the court considers these two coincidences as raising a presumption that the testator did not by the second instrument mean a second gift, but meant only a repetition of the former gift.

"This raises this presumption only where the double coincidence occurs of the same motive, and the same sum, in both instruments. It will not raise it if in either instrument there be no motive, or a different motive, expressed, although the sums be the same; nor will it raise it if the same motive be expressed in both instruments, and the sums be different."

And so, where a second legacy is less beneficial to the legatee than a previous one, this adds to the presumption already in his favor, that a distinct gift was intended. Suisse v. Lowther, supra, 433; Masters v. Masters, 1 P. Wms. 421.

The presumption in favor of accumulation is strengthened by any circumstances of difference between the two gifts, whether it be found in the amount, in the character in which it is given, in the mode of enjoyment, in the extent of interest, or in the motive for the bounty. Suisse v. Lowther, supra, 433. Here is a clear and marked difference in the character and mode of enjoyment in which these two legacies are given. The first is to remain a perpetual fund, and the income only can be expended for the charitable purposes of the society. The second is a legacy simpliciter, given without restrictions. And to make this distinction more marked, it will be observed that the Massachusetts General Hospital alone is singled out in the third clause of the codicil from the other six legatees, and the legacy to it is to be appropriated entirely to free beds.