DAVIS v. CHASE

Devise and Legacy, Construction. A single woman, having no kin nearer than cousins, by her will left $100 to the trustees of the Lowell cemetery, the income to be used in keeping the cemetery lot in proper condition, and all the rest and residue of her property "to be converted into money as soon after my decease as may be deemed expedient and advisable by my executor, and to be expended in fitting up the burial lot owned by me in the Lowell Cemetery, and in erecting a suitable and proper monument thereon." The residue of the property amounted to $8,000. The will was dated twelve years before the death of the testatrix. Held, that the express requirement that all the residue be expended upon the lot and monument was not limited by the description of the monument as "suitable and proper." Moreover, if the testatrix, being a single woman otherwise undistinguished, wished to prolong the remembrance of the family name by a beautiful monument over her grave, the court could not say as matter of law that it was not suitable and proper.

HOLMES, C.J.

This is not like a case in the Roman law of a direction to bury, with an allowance of a certain sum for the purpose, where less was used. D. 31, 88, § 1. The testatrix gives "all" the residue of her estate "for the use and to the purpose following, viz.: the same [i.e. all the residue] to be converted into money . . . and to be expended in fitting up the burial lot owned by me in the Lowell Cemetery, and in erecting a suitable and proper monument thereon." The express requirement is that all the residue be spent for the purpose or rather the purposes mentioned, and this requirement is not cut down by describing the intended monument as suitable and proper. The literal meaning of the words is confirmed by the fact that the testatrix evidently did not mean to die partially intestate. Very likely when she wrote her will she did not expect to leave so large a sum as she did, but that is a speculation. Furthermore, if a single woman not otherwise distinguished should be minded to prolong the remembrance of her family name by a beautiful monument over her grave, we could not pronounce it unsuitable or improper as matter of law. Cases like Matter of Luckey, 4 Redf. Surr. 95, as to what would be suitable in the absence of more special directions do not apply.

Decree affirmed.