Power. Devise and Legacy. A husband and wife executed with a trustee an agreement in writing whereby they agreed to live apart and the trustee received $5,500 "to be deposited in . . . banking institutions," from which and its income he was to pay to the wife $250 semiannually. The agreement also provided that, on the death of the wife, the trust should terminate and the fund be paid "to such persons or be disposed of in such manner as" the wife "shall by her last will direct," but that, "in the event of" the wife "dying intestate," the fund should be paid to the husband. The wife afterward died leaving a will which contained, besides a specific devise and various specific bequests of personal belongings which had been given to her by the legatees, a clause, the seventh, directing that, after the payment of the debts of the testatrix, the expenses of her funeral and of the administration of her estate, and the delivery of the specific bequests, "the remainder of the money securities or deposits belonging to my estate" should be held in trust for a certain cousin, and that, upon the decease of that cousin, the trust for her benefit should terminate and "said trust estate shall then revert to my general estate and be paid to . . . [C.] . . . as hereinafter provided." The eighth clause of the will provided that "all articles of personal property belonging to me at my decease, which are not herein specifically bequeathed or designated to be held in trust, . . . I give devise and bequeath to . . . [C.]." Upon the husband's claiming the fund in the hands of the trustee under the agreement of separation, the latter refused to deliver it to the executor of the will of the wife, and the executor brought an action of contract to recover it. The husband was summoned in to defend against such action as claimant. Held, without deciding whether or not the power given to the wife by the terms of separation agreement was executed by the seventh clause of her will, that, if it was not executed by the seventh clause, it was by the eighth, which was a residuary clause, and therefore that the fund should be paid to the executor of the wife's will.
Where a testator has the income of a fund for life, with a power of disposing of the principal by will, a residuary bequest in his will should be construed to be an execution of that power, unless the will shows that such clause was not intended so to operate.
LORING, J.
The first contention made by the executrix is that the seventh clause of the will of Mrs. Howland was a valid execution of the power, and her second, that the eighth clause is a valid execution of it if the seventh is not.
In this action it is not necessary to decide between the two. If either clause operates as an execution of the power, the fund goes to the executrix under the rule established in Olney v. Balch, 154 Mass. 318.
We are of opinion that the fund passes under the eighth clause if it does not pass under the seventh.
It is settled in this Commonwealth that where a testator has the income of property for life with a power of disposing of the principal by deed or by will, or by will alone, a residuary bequest or devise by him of his personal or of his real property is to be construed to be an execution of that power. Amory v. Meredith, 7 Allen, 397. Willard v. Ware, 10 Allen, 263. Bangs v. Smith, 98 Mass. 270. Sewall v. Wilmer, 132 Mass. 131. Cumston v. Bartlett, 149 Mass. 243. Hassam v. Hazen, 156 Mass. 93. Stone v. Forbes, 189 Mass. 163. Tudor v. Vail, 195 Mass. 18. "The reason which has led to the establishment of the general rule which now prevails in England (St. 7 Will. IV. 1 Vict. c. 26, § 27), as well as here, [is] that where one has the use and income of land during life with a power of disposition after death, it is natural for him to consider and treat it as his own property." C. Allen, J. in Cumston v. Bartlett, 149 Mass. 243, 250. Not only that, but it is not unnatural for him to speak of it as his own property in making his will.
In the case at bar $250 a year was to be paid to Mrs. Howland from the principal of the trust fund and the interest thereon.
The contention of the claimant is that the eighth clause of the will is not a bequest of the residue of the personal property not otherwise disposed of so as to include personal property, if any, described in the seventh clause which does not pass under that clause of the will. His argument is that the eighth clause covers "all articles of personal property belonging to me at the time of my decease not designated to be held in trust" by the seventh clause, and since money, securities and deposits are designated to be held in trust by the seventh clause they are as matter of description excluded from the eighth clause. The bequest made in the eighth clause is "all articles of personal property belonging to me at my decease, which are not herein specifically bequeathed or designated to be held in trust and all right, title and interest, if any, which I may have in any real estate at my decease I give," etc. We are of opinion that the words "designated to be held in trust" must be construed to mean given in trust, and not to mean that money, securities and deposits are excluded as matter of description in all cases from the personal property covered by the eighth clause. The eighth clause therefore includes all personal property which does not pass under the previous provisions of the will. The devise contained in this article is confessedly a general residuary devise. It is evident that the bequest there made was intended to be equally extensive.
As to the contention of the executrix that the fund passed under the seventh clause of the will: The description of the personal property covered by that clause of the will indicates that the testator had this trust fund in mind. By the terms of the indenture creating the trust fund of $5,500, it was to be paid in money and deposited in bank, and by the agreement of the parties a promissory note had been substituted therefor. Further, if it had appeared that Mrs. Howland had no money, securities or deposits on April 14, 1905, when she executed her will, that fact would warrant holding the seventh clause to be an execution of the power. See the third class of cases mentioned by Story, J., in Blagge v. Miles, 1 Story, 426, referred to in Amory v. Meredith, 7 Allen, 397, 398. See also Wallop v. Lord Portsmouth, Appendix to Sugden on Powers, (8th Eng. ed.) 916; Hurst v. Winchelsea, 2 Kenyon, 444; S.C. 2 Burr. 879, and 1 Bl. 187; Standen v. Standen, 2 Ves. Jr. 589; Grant v. Lynam, 4 Russ. 292. The statement in the agreed facts that "Without the proceeds of said trust fund, the estate of the said Mary E. Howland is insufficient to pay her debts, funeral expenses and charges of administration," is not tantamount to a statement that the testatrix had no money, securities or deposits of her own to which the seventh clause could apply.
The question whether the fund passed under the seventh or eighth clause is a question which should be decided in a suit in which the legatees named in those two clauses are parties. Upon that question we express no opinion now. As we have said, the executrix is entitled to the fund, whichever way that question is answered.
The entry must be
Judgment reversed; judgment to be entered for the plaintiff.