CHARLES D. SIAS & others, trustees, v. HERBERT T. CHASE & others.

BILL IN EQUITY , filed in the Supreme Judicial Court on June 28, 1910, by the trustees under the will of Caleb Chase, late of Brookline, for instructions.

The case came on to be heard before Rugg, J., who reserved it upon the pleadings for determination by the full court.

Caleb Chase died on November 23, 1908, leaving no issue. His widow, Salome B. Chase, survived him, and died on March 26, 1910. The will of Caleb Chase was executed on January 21, 1899. There were seven codicils. The first codicil was executed on December 26, 1899, and the second codicil was executed on October 19, 1901. The five later codicils are not material. The will and codicils were proved on December 16, 1908.

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The provision of the will giving directions to the trustees as to the distribution of the residue of a trust fund created by the will in regard to which the plaintiffs sought instructions, is quoted in the opinion.

The provision in the first codicil referred to in the opinion was as follows:

"Whereas by my said will I gave to my brother Erastus Chase ten thousand dollars, I now give to him an additional ten thousand dollars, — making in all a legacy of twenty thousand dollars. [This brother was named in the residuary clause quoted in the opinion.]

"And Whereas by said will I gave a legacy to each of the following named persons, to wit: [naming thirty-three persons, twenty-six of whom were named in the residuary clause of the will quoted in the opinion and eight of whom were not named in that clause.]

"And whereas, upon mature reflection, I do not wish a legacy to any one of the persons named above to lapse by reason of his or her death prior to my decease, or for other cause, I now direct that no legacy to any one of the persons above named, shall lapse, but that, if any one of those named above shall predecease me, his or her share shall be distributed as if it were his or her intestate estate."

The provision in the second codicil referred to in the opinion was as follows:

"And whereas by my said will I gave the estate in remainder in all my real property, devised to my wife for life, to my niece Cora M. Berry, I now modify that devise and give to her the estate in remainder only in my real property in said West Harwich, which I have long occupied as a summer residence and have been accustomed to call my 'homestead,' and which estate I inherited from my father."

S. Z. Bowman, for the trustees, stated the case.

R. M. Morse, (N. A. Tufts & J. R. Lazenby with him,) for the legatees living at the time of the filing of the bill, who were those that survived the testator's widow.

A. Hemenway, for the executors of the will of Salome B. Chase.

Asa P. French, for Annie E. Ginn.

G. L. Mayberry, for Florence T. Chase and others.

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H. H. Baker, (G.C. Coit with him,) for Annie M. Chase.

E. A. Whitman, (S. J. Elder with him,) for the trustees for Cora M. Berry and for Edward Glines.

G. C. Dickson & C. S. Knowles, for Anna C. Rogers, submitted a brief.

C. T. Gallagher & F. A. Fernald, for Phoebe Currier, submitted a brief.

A. J. Howard, for John H. Ellis, submitted a brief.

KNOWLTON, C. J. The plaintiffs, trustees under the will of Caleb Chase, bring this bill for instructions as to their duties under the following clause of the will:

"And I further direct my trustees to so divide and distribute all the rest and remainder of said trust fund among the survivors of my legatees named below that each survivor shall receive such a proportional part thereof as the amount of his foregoing legacy bears to the sum remaining to be distributed, to wit," etc. Then follow the names of thirty-five legatees. This residue was what would remain after the giving of a large number of legacies to relatives and friends, and after the creation of a trust fund of which the widow was to have the income for life, and after the death of the widow and the payment from the fund of twenty-two legacies to as many charities.

Numerous questions have been raised; but the decision of a few of them will render the others inapplicable. Although a large amount of property is in the hands of the trustees for distribution, the questions presented seem simple.

The first inquiry is as of what time are survivors to be determined. The persons mentioned are not members of a class. They are relatives and friends of the testator, to all of whom legacies had been given in the earlier part of the will. By this clause they are to share in a fund which does not take definite form, with the amount of it fixed, until after the death of the widow, and the subtraction from it of the amounts given to charities. We think it plain that only those who survive the widow are included. This is in accordance with numerous decisions in similar cases. Hulburt v. Emerson, 16 Mass. 241. Rich v. Waters, 22 Pick. 563. Denny v. Kettell, 135 Mass. 138. Coveny v. McLaughlin, 148 Mass. 576. Fargo v. Miller, 150 Mass. 225. Crapo v. Price, 190 Mass. 317.

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Brown v. Wright, 194 Mass. 540. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35.

It is contended in behalf of some of the heirs of the testator that this clause is void for uncertainty, or that it should be so construed as to leave a large part of the fund undisposed of, to be distributed as intestate estate. The will contains the strongest indications of the testator's purpose to dispose of all of his property. The first clause of disposition is, "I give, bequeath and devise all my property and estate of whatever nature and wherever situated, as follows." The property bequeathed and devised in trust, of which this fund is a part, is described as, "All the rest and remainder of my estate." The clause in question directs the distribution of "all the rest and remainder of said trust fund." In some of the codicils there is also an express recognition of the testator's purpose to include all of his property in this testamentary disposition. We have no doubt that this clause should be construed as including in the distribution all the property not previously disposed of.

Nor is there any ground for question in regard to the proportions in which the legatees are to receive it. The language in which the direction is expressed is inaccurate. The part of the fund that each survivor will receive is in such proportion to the whole amount to be distributed, as the amount of his legacy is to the whole amount of the legacies sharing in the distribution, instead of in the proportion that his legacy is to the sum remaining to be distributed. This follows from the fact that the entire residue is to be divided. As the share of each one is represented in the proportion by the amount of his legacy, and as the amount of all the legacies will represent the shares of all together in the whole residue to be divided, each one will receive such a share of this residue as his share of the legacies bears to the whole amount of these legacies. See Bartlett v. Houdlette, 147 Mass. 25; Shattuck v. Balcom, 170 Mass. 245; Chambers v. Chambers, 41 La. Ann. 443; Heyward v. Glover, 2 McCord Ch. 395; Gray's estate, 147 Penn. St. 67.

The next question is whether the provision in the first codicil, reciting the giving of legacies to thirty-four persons named, and directing that no legacy to any one of these persons shall lapse by reason of his or her death prior to the testator's decease, or

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for other cause, includes the right to share in the rest and residue of the estate, or refers only to the legacies given to these persons in the former part of the will. In Quincy v. Rogers, 9 Cush. 291, 297, Chief Justice Shaw said that, "in common parlance, as well as in a more precise use of language, a 'legacy' is distinguishable from the gift of a residue, or share in a residue." This language is quoted with approval in White v. Ditson, 140 Mass. 351, 359. The case of Lyman v. Coolidge, 176 Mass. 7, is also in point. See also Pendergast v. Tibbetts, 164 Mass. 270; Hall v. Severne, 9 Sim. 515. Moreover, it is not to be presumed that this provision in the codicil was intended to include shares in the residue which, by the terms of the clause in question, were given only to those who not only survive the testator, but survive his widow. We are of opinion that this part of the codicil has no bearing upon the mode of distribution under the residuary clause of the will.

That part of the remainder in the real estate which by the will was to go to Mrs. Berry, but by the second codicil was separated from her share, falls into the residue, and is to be disposed of by the trustees under the authority of the will; and the proceeds are to be distributed, as a part of the fund, to the survivors of the legatees referred to. McLaughlin v. Greene, 198 Mass. 153. Smith v. Haynes, 202 Mass. 531. May v. Brewster, 187 Mass. 524.

The term "foregoing legacy," in the clause in question, refers to the legacies in the preceding part of the will, and does not include any additional legacies under the codicils increasing the amounts given to some of the legatees.

The distribution is to be made among the persons included in the first class [Note 1] in the plaintiff's bill, in such proportions that the amount given to each shall be in the same proportion to the whole amount distributed, as the amount of his legacy, given in the preceding part of the will, bears to the whole amount of the legacies included in making the distribution.

So ordered.