Opinion
No. 4125.
Decided July 1, 1952.
The right given to an executor to select certain articles of personal property to be his absolutely followed by a statement that the selection and distribution of such articles were to be in accordance with a memorandum, never furnished, did not constitute a beneficial gift to the executor who although named as a residuary devisee was later eliminated as such by codicil. There was no incorporation by reference, in such case, in the absence of a memorandum. So also this creation of a trust by such clause fails from indefiniteness. Where real estate is devised without indication as to whether the mortgage indebtedness is to be assumed by the devisee or paid out of the personal estate, the nature of the estate devised is determined by the law of the state in which the land is located. Hence the nature of the estate devised of Massachusetts real estate encumbered by mortgage is governed by the law of that Commonwealth (G. L., ter. ed. c. 191, s. 23) and the devisee receives only the interest the testatrix had at her decease in excess of the mortgage indebtedness in the absence of a contrary testamentary intention. However, by the common law of this state unchanged by statute, a devisee of real estate situated here is entitled to have the mortgage indebtedness paid out of the personal estate where there are sufficient assets. The fact that the testatrix made specific cash bequests to some legatees indicated an intention that when she bequeathed cash or certain shares of stock in the alternative to certain other legatees the right of selection was to rest with such other legatees rather than the executor.
PETITION, for instructions brought by the executor of the will of Justine F. Kershaw, late of Marlboro, deceased. The will was dated March 14, 1945, and subsequently modified by eight codicils, the first one dated May 29, 1945, and the last one September 20, 1950. All questions of law raised by the petition were reserved and transferred without ruling by Sullivan, J.
The petition quoted below discloses certain portions of the will upon which instructions are desired and the questions raised thereby:
"1. That under the provisions of Item One of the will of Justine F. Kershaw . . . Virginia H. Dole was devised and bequeathed real estate at 6 Bond Street, Cambridge, Massachusetts, together with all china, furniture, and other articles of household use or ornament contained therein which are not otherwise specifically bequeathed and not disposed of under Item Eight. Item Eight of said will provides as follows:
"`I give and bequeath to Roberts Tunis of Boston, Suffolk County, Massachusetts, such of my clothing, jewelry, personal effects, papers, books, china, plate, linen, furniture, pictures and other articles of household use or ornament as he may select which I have not otherwise specifically bequeathed, wherever the same may be situated, to be his absolutely. In making this bequest I have full confidence that he will select certain articles which I may indicate to him by a memorandum or otherwise, and will dispose of the same in accordance with my wishes as expressed to him in such memorandum or otherwise.'
Certain personal property situated on the premises at 6 Bond Street, Cambridge, Massachusetts, was specifically bequeathed under Item Seven of said will, being a tall clock as therein described, and under the provisions of the codicil dated March 3, 1950, a bequest was made of a gold sofa and chairs to match and the four-posted bedstead at 6 Bond Street, Cambridge, Massachusetts. Item Six of said will provides that certain books on the Arts, Chinese pottery, metal work, and carvings are specially bequeathed to the Curator of Asiatic Arts of the Boston Museum of Fine Arts for the Curator's Fund.
"Under the provisions of the codicil dated November 1, 1945, there is the following provision:
"`I also give, devise and bequeath to said Malcolm Strachan the books forming the library of the late Francis S. Kershaw which are at my Cambridge residence, 6 Bond Street . . .'"
As a result of these provisions, the question arises as follows:
"Do the provisions of Item Eight of the will give Roberts Tunis the right to such as he may select of the clothing, jewelry, personal effects, papers, books, china, plate, linen, furniture, pictures, and other articles of household use or ornament except the tall clock, and gold sofa and chairs to match and the four-posted bedstead, the books on the Arts, Chinese pottery, metal work, and carvings, and the books referred to in the codicil dated November 1, 1945?
"2. Under the provisions of Paragraph Nine of said will, as amended by the codicil dated December 9, 1946, there are the following provisions:
"`Item Nine. All the rest, residue, and remainder of my property, both real and personal, including my estate in Dublin and Marlboro, New Hampshire, known as MERRYWOOD, together with all tangible personal property in my house known as MERRYWOOD and in the library, together with all books, china, plate, linen, furniture and other articles of household use or ornament therein, wagons, carriages, automobiles, animals, tools and equipment, and articles of outdoor use which are on or used in connection with said real estate except such of the above as may be otherwise bequeathed herein, I give, devise and bequeath to Alexander W. Dole of 50 Concord Avenue, Cambridge, Massachusetts, John Hawes of Marlboro, New Hampshire, Rev. Michael Martin of 99 Brattle Street, Cambridge, Massachusetts, Rev. Malcolm Strachan of Groton, Massachusetts, in equal shares outright . . .
"`There is at present located at Merrywood a library, the use of which is now enjoyed by the community. I hope that this use may be continued both as a reading and lending library for the neighborhood and for others who are interested to avail themselves of it.'
"Under the provisions of Item Six of said will certain books on the Arts, Chinese pottery, metal work, and carvings are specifically bequeathed to the Curator of Asiatic Arts of the Boston Museum of Fine Arts for the Curator's Fund. As a result of these provisions and the provisions of Item Eight hereinbefore referred to in Paragraph 1, the following question arises:
"Do the provisions of Item Eight of the will give Roberts Tunis the right to such as he may select of the clothing, jewelry, personal effects, papers, books, china, plate, linen, furniture, pictures, and other articles of household use or ornament situated on the real estate of the testatrix at Dublin and Marlboro, New Hampshire, except the articles referred to in Item Six of said will and the books in the library referred to in Item Nine of said will?
"3. There are mortgages given by the deceased on the property situated in Cambridge, Massachusetts, and in Marlboro and Dublin, New Hampshire. The following questions arise:
"Is the executor bound to pay out of the personal property of the estate the mortgages on the real estate in Cambridge, Massachusetts, and in Marlboro and Dublin, New Hampshire, and exonerate said real estate from any liability on account of said mortgages? And in the case of the real estate in Cambridge, Massachusetts, is the question to be determined according to the law of Massachusetts or of New Hampshire? And if according to the law of New Hampshire, do the courts of New Hampshire have jurisdiction to determine the duty of the executor with respect to the mortgage on said real estate in Cambridge, Massachusetts?
"4. Under various provisions of the will and codicils there are certain legacies in the alternative of cash or certain shares of Houghton Mifflin Company stock, such as the following:
Under Item Five of said will:
"`2. To Henry O. Houghton of Weston, Massachusetts, the sum of Five Thousand (5,000) Dollars or fifty (50) shares of Houghton Mifflin Company stock . . . .'"
"The following question arises:
"Does the executor or the legatee named have the choice of determining whether the legatee is entitled to take stock of the Houghton Mifflin Company or cash under the provisions of the aforesaid provisions of the will and the codicils referred to herein?"
Sulloway, Piper, Jones, Hollis Godfrey and Irving H. Soden for the executor, filed no brief.
Philip H. Faulkner and George R. Hanna (Mr. Hanna orally), for Malcolm Strachan.
McLane, Davis, Carleton Graf (Mr. John R. McLane, Jr. orally), for Rosamond H. Whitney and Henry O. Houghton.
Howard B. Lane (by brief and orally), for Virginia H. Dole and Alexander W. Dole.
Francis G. Moulton (by brief and orally), for John Hawes and Ellen Hawes.
I. The first sentence of the eighth item of the will gives the executor the right to select certain articles of personal property to be his absolutely. However, this is followed by a statement of confidence on the part of the testatrix that the executor will select articles which she may indicate by memorandum or otherwise and that the executor will dispose of them in accordance with her wishes as expressed in such memorandum or otherwise. At the time the will was executed the executor was one of the residuary devisees but in a codicil he was eliminated as a residuary devisee. It does not appear from the reserved case that the testatrix left any memorandum or other instructions. This eliminates any question of incorporation by reference. Hastings v. Bridge, 86 N.H. 172, s. c. 247; Souhegan Bank v. Kenison, 92 N.H. 117.
There are several indications from the will that the testatrix did not intend to make a beneficial gift to the executor. The selection and distribution of the articles of personal property were to be made in accordance with the testatrix' wishes and not according to the executor's own personal wishes. Furthermore, the executor was not an object of the testatrix' bounty when item eighth is construed in the light of the codicil eliminating him as a residuary devisee. Therefore, item eighth cannot be construed as making an outright gift to the executor. Anno. 104 A.L.R. 114; 151 A.L.R. 1438. If this clause of the will is construed as creating trust, it fails from indefiniteness. Clark v. Campbell, 82 N.H. 281; Uloth v. Little, 321 Mass. 351.
The guiding principles which control this construction of the will have been well stated in Restatement of Property, s. 323, comment e: "Testamentary gifts to executors `to distribute.' Occasionally a testator provides that certain property shall pass to his executors and adds `to be distributed by them as they deem advisable' or `to be disposed of as they think will be in accordance with my wishes' or some similar clause. Such a clause may have one of several legal effects, (1) If, as a matter of construction, it is determined that the testator intended the executors to benefit personally from the gift, such a clause may be held (a) to be an outright gift to the executors, or (b) to create in the executors a general power of appointment presently exercisable. The former holding is rarely justified since it necessarily treats as surplusage the words of the will which provide for distribution and hence violates the canon of construction that all words of a will are to be given effect if possible. (2) If, as a matter of construction, it is determined that the testator did not intend the executors to benefit personally from the gift, such a clause is an attempted trust for indefinite beneficiaries and hence void (see Restatement of Trusts, s. 122). Conceivably such a clause could be held to create a power to appoint the property to any persons other than the executors; but it is on the whole preferable to allow the property to pass as part of the residue or by intestacy rather than to attempt to carry out a highly doubtful testamentary intent by any such unusual device.
". . . The following are examples of indicia of intent commonly found. If the will indicates that the executors are not to distribute according to their own personal wishes but according to their knowledge of the testator's desires or any other standard, the inference is strong that a benefit to the executors was not intended . . . . If the executors are natural objects of the testator's bounty this tends to indicate that a beneficial gift was intended; but if one of the executors is a corporate fiduciary the contrary conclusion is almost irresistible.
"If the will provides that the executors are to make distribution in accordance with directions previously given to them by the testator, there is an attempted trust which fails under the statute of wills unless the directions previously given comply with the formal requirements imposed by that statute (see Restatement of Trusts, s. 154, Comment d)." The answer to the first question transferred is no.
II. Under the provisions of the sixth item of the will certain books on the arts, Chinese pottery, metal work and carvings were bequeathed to the Curator of Asiatic Arts of the Boston Museum of Fine Arts "as he may desire." Since these articles were specifically bequeathed, they do not pass under the residuary clause which disposes of certain books and pictures and, for the reason already advanced, they are not disposed of by the eighth item of the will which purported to give the executor the right to select certain articles of personal property. The answer to the second question is no.
III. The testatrix owned real estate both in the Commonwealth of Massachusetts and in New Hampshire in each case subject to mortgage given by her. The will contains no provisions relative to payment of mortgages on the real property devised but only the usual provision for the payment of just debts and a direction that all taxes shall be paid out of the residue of the estate. Since the will does not indicate whether the mortgage indebtedness is to be assumed by the devisees or paid out of the personal estate, the operative effect of the will as to the nature of the estate devised is determined by the law of the state in which the land is located. 2 Beale, Conflict of Laws, s. 251.3; Blaine v. Dow, 111 Me. 480; Restatement, Conflict of Laws, ss. 249, 251 (2); See Eyre v. Storer, 37 N.H. 114. The devise of the Massachusetts property is governed by the law of that Commonwealth (G. L. (ter. ed.) c. 191, s. 23) so that the devisee receives only the interest the testatrix had at the time of her decease over and above the mortgage thereon. Goodfellow v. Newton, 320 Mass. 405, 409. The present case does not involve the interpretation of doubtful language in the will which question would be determined by New Hampshire law where the testatrix was domiciled. Harris v. Ingalls, 74 N.H. 339, 345; Jackman v. Herrick, 178 Iowa 1374.
In the absence of a contrary intention expressed in the will, a devisee of real property in this state is entitled to have the mortgage paid out of the personal estate where there are sufficient assets. See R.L., c. 353, s. 16; 120 A.L.R. 577. The executor is bound to exonerate the New Hampshire real estate from any liability on account of any mortgages made by the testatrix since there is no statute or testamentary provision changing this common law rule. Cf. Model Probate Code, s. 189 and comment (1946); 40 Harv. L. Rev. 630.
IV. Various provisions of the will and codicils bequeath certain sums of money or certain shares of Houghton Mifflin stock. In all such bequests the stock is treated as worth one hundred dollars a share. This raises the question whether a bequest in the alternative of cash or certain shares of stock gives the right of selection to the legatee or the executor. Except for an occasional or ancient dictum, there is little direct authority in point. Jacques v. Chambers, 2 Coll. 435 [1846]; In re Mizener's Estate, 262 Pa. 62; In re Connolly's Estate, 166 Pa. Super. 383.
The usual and ordinary meaning that would be given to a gift of cash or securities is that the legatee had the right to choose one or the other. The fact that the testatrix made several cash bequests without the alternative of securities is some indication that the alternative bequests were intended to be at the option of the legatees. There is nothing in the will to indicate that the executor was the one to decide whether cash or stock was most beneficial to the legatees so that the implied right of selection rests with the individual legatees.
Case discharged.
All concurred.