RANDOLPH L. THURLOW vs. OSCAR G. THURLOW. administrator, & another.

QUA, J. This petition is brought against the respondent in his capacity as administrator with the will annexed of the estate of Amanda D. Lunt, late of Newbury, and also in his individual capacity, to require him to pay over to the petitioner the proceeds of the sale of sixty-two shares of stock in Towle Manufacturing Company, which have been sold by him as assets of the estate. The petitioner claims that title to the stock was in him by virtue of a provision contained in the will of George W. Lunt, deceased husband of Amanda.

The Lunts were an elderly couple possessed of a substantial property, a large part of which consisted of savings bank deposits in their joint names. The husband died in 1938 and the wife in 1943. They had no children. The petitioner was a nephew of Mrs. Lunt. In his younger years he had lived with the Lunts much of the time and had worked on Lunt's farm. His relations both with his aunt and with his

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uncle by marriage had been intimate and affectionate. The Towle stock at all material times stood in the names of "George W. or Amanada D. Lunt or survivor." We therefore assume in favor of the respondent that this stock was held by husband and wife in some form of joint tenancy, so that upon the death of the husband before that of the wife title thereto would have become vested in the wife (see Phelps v. Simons, 159 Mass. 415; Splaine v. Morrissey, 282 Mass. 217) and would have passed to the respondent as her administrator, if it had not been for another factor involved in the contention of the petitioner, which raises the decisive issue in the case. This contention is that George W. Lunt by his will, which was admitted to probate in 1938, purported to deal with this stock as his own absolute property and as such included it in the residue of his estate, which he set up as a fund for the benefit of his wife during her life; that he specifically bequeathed the stock to the petitioner at his wife's death; and that the wife, after the death of the husband, accepted the provisions of the will made for her benefit with full knowledge of all material facts and therefore became estopped, and that her administrator is likewise estopped, from asserting any interest in the stock at variance with the disposition of it made in the husband's will. The Probate Court, without making any express findings of fact, dismissed the petition, thereby rejecting the petitioner's contention. The evidence is reported.

It is a well settled rule "that if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will, or in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent the full effect and operation of every part of the will." Hyde v. Baldwin, 17 Pick. 303, 308. "The main principle was never disputed, that there is an obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit; and if it be found that that instrument purports to deal with something which it was beyond

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the power of the donor or settlor to dispose of, but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect." Lord Hatherley in Cooper v. Cooper, L. R. 7 H. L. 53, 69, 70, cited in Noyes v. Noyes, 233 Mass. 55, 59. [Note 1]

The will of George W. Lunt, after a provision for the payment of debts and funeral expenses and a legacy to Amanda D. Lunt of all his household furniture and furnishings and wearing apparel, continued as follows: "3. All the rest, residue and remainder of my estate, real and personal, and wheresoever situate, I give, devise and bequeath to my said wife, Amanda D. Lunt, in lieu of dower or widow's allowance, with power to use the net income during her life, and such part or parts of the principal from time to time, as she, in her judgment, deems necessary for her comfort, support and maintenance, her judgment of the necessity for such use to be final and controlling, and I direct her to keep the same separate and distinct from her own estate, and whatever may be left unexpended at her death, after the payment of the expenses of her last illness and burial, I give, devise and bequeath as follows: --" Then comes a specific devise of certain real estate to the present petitioner and thereafter the legacy of the Towle stock to the petitioner in these words, "To said Randolph L. Thurlow my shares of stock in the Towle Manufacturing Company of said Newburyport." This in turn is followed by another legacy to another nephew of Mrs. Lunt in these words, "To Ralph L. Thurlow of said Newburyport, my shares of stock in the First and Ocean National Bank of said Newburyport." Then come a small legacy and a gift of the ultimate remainder to the testator's sister.

Not only did the testator make his specific bequest over

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of the Towle stock to the petitioner as "my shares" in the same words in which he made a similar bequest over to another nephew of the bank stock which stood wholly in his own name, but the form of paragraph 3 quoted in part above shows that he made both bequests out of "whatever . . . [might] be left unexpended at . . . [his wife's] death" of the "rest, residue and remainder of my estate" given to his wife for life. He therefore intended to include the Towle stock in the fund set up for his wife's benefit during her life. He intended to place the entire title to the stock at the disposal of the trust on the theory that the entire title was in him. He could not have intended to put in only his interest as a joint tenant, for that would terminate with his own death. He assumed a right to dispose of the stock as a whole. The will admits of no other construction. We cannot accept the respondents' contention that Lunt intended the bequest of the stock to take effect only if he survived his wife. Such intent would be inconsistent with the inclusion of the stock in the trust during his wife's lifetime after his own death. Moreover, if he had entertained that intent there would have been no point in expressly postponing the taking effect of the bequest until after the wife's death. It follows that upon the death of George W. Lunt his widow was plainly confronted with the necessity of electing between the inconsistent positions of accepting benefits under the will, with the consequent abandonment of all interest in the Towle stock except that which the will gave her, and renouncing all benefits under the will, while claiming the stock as surviving joint tenant. She accepted the benefit of the legacy of furniture, furnishings, and wearing apparel and of the trust under the will, as indeed it would seem to have been to her advantage to do, since thereby she acquired a practically complete power to subject to her own uses during her lifetime both the principal and income of all of the property which her husband held in severalty, and she also retained an equivalent power over the Towle stock, which would pass to the petitioner only in the event, which has in fact transpired, that she did not deem it necessary to sell the stock in her

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lifetime. She had the benefit of the will during the period of nearly five years that elapsed between her husband's death and her own death. During this period she received the income of the fund and used such part of the principal as she deemed necessary.

There is nothing in the evidence to overcome the natural effect of Mrs. Lunt's conduct as an election to accept the benefits under the will rather than to assert full title to the stock. The evidence shows plainly that she was familiar with the provisions of the will, knew that the Towle stock referred to in the will was that now in issue, and knew that the stock was held jointly. Perhaps she did not know that the law required an election, but neither she, nor her administrator before or since this petition was brought, has offered to return any of the benefits received under the will. The election to take under the will must now be regarded as a finality, and it is too late for her estate to claim title to the stock instead. Watson v. Watson, 128 Mass. 152, 157. Noyes v. Noyes, 234 Mass. 397, 402. The rule already discussed forbids that Mrs. Lunt or her estate should have the benefit both of the will and of full title to the stock.

The decree must be reversed, and a decree must be entered granting to the petitioner the relief prayed for.

So ordered.