SHIRLEY H. BRAMLEY & another vs. MILDRED ETHEL WHITE & others.

DONAHUE, J. The will of Walter Bramley, which was executed on February 24, 1920, devised and bequeathed to his wife Carrie Bramley "all my real and personal property, meaning that all my possessions I leave to her. At her death I request that what remains be devided [sic] equally among my three children Walter Gwilliam Bramley . . . Harry Barratt Bramley . . . and Mildred Ethel White . . ." The will recited that The Taylor Bramley Company, in which he was interested with one Taylor, was undergoing a reorganization, "and we hope that in the near future the company will be able to pay dividends on the common stock and it is from this stock that I expect my wife to obtain an yearly income. If at any time she desires to dispose of . . . [that] stock . . . I suggest that she advise with my partner Albert E. Taylor, who I am sure will give her the true state of affairs and advise her accordingly." He nominated his wife and his son Harry B. Bramley as executors and suggested that "they council with my partner Albert E. Taylor in regard to matters as I have confidence in his ability as a councilor." The testator's widow, who was his second wife and the mother of Harry Barratt Bramley and Mildred Ethel White, died intestate on November 21, 1929. Certain property received by his wife under the will of her husband had not been used or disposed of by her at the time of her death and at present is in the possession of her administrators, Harry Barratt Bramley and Mildred Ethel White, either in that official capacity, or individually.

Walter Gwilliam Bramley, who was a son of the testator by his first wife, died before his father leaving two children. By a next friend they brought a petition in the Probate Court naming Harry Barratt Bramley and Mildred Ethel White individually and as administrators of the estate of their mother, Carrie Bramley, as respondents, in which petition each seeks to obtain one sixth of such of the property left by Walter Bramley as was in the possession of Carrie Bramley at the time of her death. By agreement of all parties the petition was treated as if its sole subject matter were the construction of the will of Walter Bramley.

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The case was heard in the Probate Court in part on "oral testimony as to the circumstances of the making of the will and the relations of the parties." The testimony is not reported. The judge in response to a request for a report of the material facts found by him, in addition to facts above recited, found that "Walter Gwilliam Bramley was left with his grandparents in England after the death of his mother who died when he was young and it was not until he was fifteen that he came to this country and lived with his father. He married and left his father's house at the time but lived nearby and he and his father were on friendly terms. He never was able to earn much money and was assisted by his father especially after his marriage and the birth of his two children. The other children, children of a second marriage, spent their entire childhood at home and remained there until their marriage."

The case comes before us on the appeal of the respondents from a decree of the Probate Court which ordered and decreed that the will created a life estate in Carrie Bramley and that the property of Walter Bramley remaining unused by her at the time of her death be shared one third to each of the two children of the testator by his second marriage and one sixth to each of the petitioners as children of Walter Gwilliam Bramley, deceased, by right of representation. See G. L. (Ter. Ed.) c. 199, s. 22.

It is contended by the petitioners that the testator's wife took under the will an interest for life; by the respondents that she took an absolute interest. If by his will the testator made an absolute gift to his wife, a gift over of the same property would not be valid, Dallinger v. Merrill, 224 Mass. 534, 539, Ide v. Ide, 5 Mass. 500, but this rule cannot operate if it is found that the testator has adequately manifested in his will the intent that his wife should not take an absolute interest. Crowell v. Chapman, 257 Mass. 492, 496. Kemp v. Kemp, 223 Mass. 32, 35. Although words of inheritance are not necessary to create an absolute estate by will (Bassett v. Nickerson, 184 Mass. 169, 173), and it is not essential that the words "for life" or their precise equivalent be used in order to create a life

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estate (Temple v. Russell, 251 Mass. 231), in the absence of words of either sort descriptive of the quantity of an interest given, a testator's intent must be determined by construction. Dorr v. Johnson, 170 Mass. 540, 542. Ware v. Minot, 202 Mass. 512, 517.

Following the accepted rule for the interpretation of a will we have examined the language of Walter Bramley's will, reading the document as a whole and in the light of the circumstances existent and known to him at the time of its execution. Whatever intent of the testator that process discloses must here govern our conclusion unless it be an intent which runs counter to some controlling rule of law. Sewall v. Elder, 279 Mass. 473, and cases cited.

The body of the instrument here presented for construction in form, language and spelling indicates that it was not the product of an experienced drafter of wills. The words "I bequeath and devise as follows: To my wife Carrie Bramley, all my real and personal property," standing alone would be sufficient to pass the fee in any realty and an absolute interest in any personalty which the testator at his death owned. But those words do not stand alone. In the first place the testator apparently was not entirely content with that language and proceeded to give a definition by adding the further words: "meaning that all my possessions I leave to her," selecting for the word of gift "leave" which is less formal and precise, less settled in legal significance than the words "bequeath and devise." The entire expression of the gift to his wife does not stand alone. It is followed immediately by the provision referring to his children. In the next paragraph the testator's mind again recurs to his wife and to a portion of his property, The Taylor Bramley Company stock. The expressions of his expectancy that dividends on that stock would provide, his wife with an annual income and of his understanding that his gift to her was such that she had the right to dispose of the stock, were unnecessary if he had given her absolute ownership. (Kent v. Morrison, 153 Mass. 137, 139, Baker v. Thompson, 162 Mass. 40, 42.) Without overstressing these particular provisions, it is fair to say

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that they are somewhat more consistent with the construction that he intended to give her a life estate than with the construction that there was an intent to give her absolute ownership. The fact that a donee has the power to sell or otherwise dispose of property given by will does not in itself prevent the gift being construed as a life interest. Dana v. Dana, 185 Mass. 156, 158. King v. Walsh, 250 Mass. 462, 466.

Read as a whole the will discloses a further purpose than the making of provision for the testator's wife. It contemplates his wife surviving him since the contingency of her death before his is not provided for. His purpose when he executed the will manifestly looked beyond her lifetime and her need of his property, it visioned the possibility of something remaining after her worldly needs were served. He expressed a further purpose when he said, "At her death I request that what remains be devided [sic] equally among my three children" whose names and places of residence are stated and one of whom he made a coexecutor with his wife. This is not a suggestion or recommendation made to the original beneficiary, his wife. She is not told to make the division or to provide by a will for the designated distribution. In this respect this case differs from cases like Hess v. Singler, 114 Mass. 56, and Dexter v. Young, 234 Mass. 588, where the wills construed contained such provision. The time of the division which the testator here had in mind was a time after the death of his wife. A division as of such a time if not made by her will could be made only by his legal representatives. It is a reasonable construction to hold that it was to them and not to his wife that the words presently being considered were directed. If it was the testator's intent that his wife should take an absolute interest in his property, the provision referring to his children was unnecessary. The children born of his second marriage would be the heirs of their mother and there is nothing to indicate that the testator needed to make any provision for them in the event of their mother's death. But he had another child, his oldest son, born of the long dead wife of his youth. In the absence

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of a provision in his will this son, whom the testator in his lifetime had helped and cherished, would take nothing if, after the wife of the testator had made such use of his property as she wished and died, there was some of it remaining. The sentence referring to his three children clearly expresses the thought of equality of treatment so far as his property was concerned. If the testator was to be sure that his oldest son would stand in such equality with the other two children it was necessary that it should be expressed in his will. The reason for the insertion of the provision as to the children seems to have been that, when the purpose of providing for his wife had been accomplished, his oldest son should share with the other children any property that remained.

A manifested intent is not to be thwarted by attaching a "hard and fast meaning to particular words apart from their connection and the atmosphere of the instrument in which they are used." Poor v. Bradbury, 196 Mass. 207, 209. The proper rule for the construction of a will does not "permit some of the words of a will to contravene an intent fairly to be deduced from a study of the will as a whole and of the circumstances in the light of which it was executed." Crowell v. Chapman, 257 Mass. 492, 495. According to the context in which it is used such a mild word as "desire" may be interpreted to "mean a command, in a polite form" in one will (see Weber v. Bryant, 161 Mass. 400, 403), and in another will merely a recommendation and not a command (see Barrett v. Marsh, 126 Mass. 213, 216). So, the interpretation of the word "request" in another will addressed to one to whom the estate was given by words of inheritance (see Durant v. Smith, 159 Mass. 229), has no compelling potency in the construction of the will before us where the language of the gift to the testator's wife does not contain such words. The case of Knibbs v. Knibbs, 236 Mass. 182, on which the respondents strongly rely, does not govern the decision of the present case. In the cited case, page 184, the language of the will expressing the gift to the testator's wife - "to have and to hold, spend whatever pleases her" -

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was construed as creating an absolute gift of realty and of personalty. This conclusion having been reached the later words referring to his niece, his grandson and his children were interpreted as expressions not obligatory on the wife. That case was before this court on a reservation upon the bill and answers. An examination of the original papers shows a record bare of recital of any circumstances existent and known to the testator at the time of the execution of the will to which the court might have resorted for help in the determination of the testator's intent. The construction there had to be made solely from an examination of the instrument itself. In the case now before us not only is the language stating the gift to the wife less conclusive and the words referring to the children more imperative, but, what is of greater significance, we have the circumstances under which the will was made which here furnish helpful light in the ascertainment of the testator's intent.

We think that the will read as a whole in connection with the circumstances which the testator must have had in mind when he signed it adequately manifests the purpose that his wife should take the property which he left with the right to use it for her life, and the further purpose that any of that property which should be left at her death should be divided among the testator's three children. "By emphasizing some parts of the will to the exclusion of others, or by putting one part of the testator's intent above another, a different conclusion might be reached. But we have no right to do that. All the words of the will are satisfied and given some weight only" by the construction here adopted. Ware v. Minot, 202 Mass. 512, 518. A proper decree was entered in the Probate Court.

Decree affirmed.