MARY E. BUSHBY & another, executors, vs. SARAH S. NEWHALL & another.

DeCOURCY, J. The will of Mary Jane Busby contained the following clause: "Whereas I wish to distribute my wardrobe and personal effects among my friends but am not now ready to indicate what that distribution shall be, I therefore hereby declare that I intend to indicate such distribution by a letter to accompany this my last will which I wish to be taken and treated as a part of my said will." No such extrinsic document was in existence at the time the will was executed, nor later, so far as appears, and concededly no legal disposition of the property was made under this clause. Thayer v. Wellington, 9 Allen 283. The executors petition for instructions as to whether the wardrobe and personal effects are made a part of the residue under the will or pass to the next of kin as intestate property.

A general residuary clause such as that contained in this will is designed to prevent a partial intestacy. It provides not only for the property remaining above what the will purports to dispose of, but also for that which it undertakes to dispose of but fails to do so effectively. Thus, except where the beneficiary is a child or other relation of the testator (R. L. c. 135, § 21), a legacy or devise that lapses on account of the death of the legatee or

Page 433

devisee before the period arrives for its payment falls into the residuum, Lovering v. Lovering, 129 Mass. 97, 100. The same disposition is made of a devise or legacy that is revoked, Bigelow v. Gillott, 123 Mass. 102, and of one that is void. Batchelder, petitioner, 147 Mass. 465, 468. In all these instances, as in the case at bar, the testator expected the gift to go another way than as part of the residuum. But as the court say in Thayer v. Wellington, supra,"we take the rule to be that a general residuary clause passes all the estate of the testator not otherwise disposed of, unless it is manifestly contradictory to the declared purpose of the testator, as found in other parts of the will. There must be a clear intention that in no event it shall pass to the residuary devisee."

No such clear intention is manifested in this will. Presumably the testatrix meant to dispose of all her property under the residuary clause unless she should effectively provide otherwise by letter. It may be that she failed to write the intended letter, or that she wrote and destroyed it for the reason that she changed her mind and concluded to have this property go to the residuary legatees. But whether the failure to alter the definite provisions in her will arose from accident or design, no future determination could effectively take this property out of the residue unless expressed in a codicil or subsequent will legally executed as a testamentary instrument.

We are of opinion that the wardrobe and personal effects referred to in the first section of the will are part of the residue of the estate. This renders it unnecessary to determine what property mentioned in the inventory is "wardrobe and personal effects." The decree of the Probate Court is to be affirmed.

So ordered.

The case was submitted on briefs.

J. W. Allen & A. A. Silton, for the next of kin.

A. B. Tolman, for the residuary legatees.