Rice v. Society , 56 N.H. 191 ( 1875 )

in Lee v. Pain, supra, 201, says the true value of the fact of the presence of the word "more," or "in addition," or the like, in some cases and not in others, is, that it is a circumstance which may corroborate or be corroborated by other facts, and so show some particular intention of the testatrix. Failing to discover a systematic plan of such unbending character as the executor claims, and the execution of the codicil having broken in upon whatever of system there is in the will, there is little to corroborate or be corroborated by the use of the word "more." Undoubtedly there is more or less of plan or system in every will. As a general rule, every person approaches this, one of the solemn events of his life, impressed with a sense of the gravity and responsibility of the work. And it would be idle to deny that this testatrix exhibited unusual evidence of system or method in the disposition of her estate by will; but I fail to see that it was of that inflexible character that would exclude the idea that she had no preferences, which she did not fail to exercise; while the first and second clauses of her codicil, as I have attempted to show, prove that she did have preferences, among the objects of her bounty of the same class, which she exercised. The very large legacy of $20,000 given by her in her will to the Sailors' Snug Harbor, in addition to the legacy of $5,000 given to the defendants in the same will, a sum nearly equal to the amount of all her legacies to all other charitable societies (exclusive of literary and religious societies), is very strong evidence that the cause of seamen was one in which she was deeply interested, and affords a strong reason why she wished to add to the legacy to the defendants by giving another sum of $5,000 in her codicil.

Again: it appeared in the argument, that by an act approved March 1, 1867, the societies known as "the Managers of the Port Society of Boston" and "the Seaman's Aid Society" were united under the name of the "Boston Port and Seaman's Aid Society." Her will was executed soon after (May 18, 1867), and probably before the community had generally become aware of the change, and so she used the old name in her will of the "Seaman's Aid Society." But her codicil was executed more than a year later (July 1, 1868), in which she refers to the society by the name of the "Boston Seaman's Aid Society." The dual character of the society, as suggested by counsel in argument, may have furnished her with a reason she should wish to double her legacy to it.

Another reason why these legacies should be held cumulative, I cannot better express than the language of the learned counsel for the defendants in his brief. "Here it is again important to consider the use of the word `more.' By the general rule, if there had been no distinction between the gifts made by the codicil, the use of the word `more' would be superfluous, for the gifts would be cumulative without as well as with it; but as used it is not superfluous, for one class of gifts are, in addition to the fund, already created — `more to the fund' are her words. Here it is necessary to show the use of the gift; but when she gives simply without the restriction as to the use, she omits the unnecessary word, and its absence, instead of being against the defendants, is a circumstance showing the intention to be as they claim, that they take the $5,000 given by the codicil for the general uses of the society."

Another difficulty occurs to me, if the second legacy is to be held a repetition of the first, and that is, Under which instrument will the defendants take? If under the will, then the gift is for an express purpose, and the principal must be invested, and the income only used; but if under the codicil, then the gift was simpliciter, and more directly beneficent to the society. The very reason why one legacy is held to be a repetition of another, or substitutionary, is because the motives for giving and the uses to be made of the legacies are the same. But here is a case where not only the motives must be different, but the uses are widely different.

It may well be asked, If the legacy in the codicil was substituted for that in the will, why did not the testatrix say so? Did she not understand what she was doing? She had sufficient intelligence to say, in the first and second clauses of the codicil, without the aid of a lawyer, that the gifts were "more to the fund" — not gifts simpliciter, but additions to the fund. If she was the intelligent and methodical woman the executor claims, and intended to substitute the legacy in the codicil to the defendants, which is a gift simpliciter, for the legacy in the will, which was burdened with the perpetual restriction to be invested and the income only to be used, why did not she so say in apt words? I freely concede the intelligence and good sense of the testatrix, and I am entirely satisfied that she did not so say because she did not so intend. She intended just what the law presumes from the language she used, that the second gift was a gift simpliciter, and cumulative, while the first gift she intended to be kept as a fund; and if not in perpetual remembrance of her, it would, in fact, be a perpetual monument of her munificence to the unfortunate class of persons for whose benefit its annual income would be devoted.

Again: the gift of a legacy by the codicil of the same amount, as legacies by will to one only of a class, is readily explained upon the supposition that her intentions as to that one were different from what they were as to the others. But the plaintiff claims the defendants' name was inserted in the third clause in the codicil through forgetfulness or mistake. I can hardly suppose the testatrix had forgotten her will. The opening sentence of the codicil, written by herself, is, — "Be it known that I, Arabella Rice, of Portsmouth; do make and declare this to be a first codicil to my last will and testament, dated May 18, 1867."

This codicil was written by herself, in the room of the safety vault where her will was deposited for safe keeping, and, as I think we are warranted in presuming, with the will before her. From the references to the will contained in the codicil, it is clearly apparent that she had it before her, or was familiar with its contents. The extreme improbability that a woman so careful and methodical as she is claimed to have been, with her will either before her or within her reach, making such a mistake, is a possibility too remote to be weighed against the presumption in favor of cumulation; while if there be any difficulty here, occasioned by want of care in the testatrix in not saying that this legacy to the defendants in the codicil was a substitution for that in the will, or in not saying that it was in addition to it, the pecuniary legatee, and not the residuary legatees, is entitled to the benefit of the doubt which that want of care has occasioned. Lee v. Pain, supra, 236.

It is not claimed here that the codicil is itself a substitution for an integral part of the will, for the only point of resemblance between the will and the codicil arises out of the legacies to these defendants. Where all the legatees in a will are provided for in a codicil, the case is open to the claim that the testator may have intended to substitute the codicil for that integral part of the will by which legacies are given. But that case does not arise here, and there is no occasion to pursue the inquiry in that direction.

As to the question of interest, the rule in such cases was settled in Loring v. Woodward, 41 N.H. 391, and I see no occasion to question its correctness. The defendants are entitled to interest after one year from the death of the testatrix.

And I am of opinion the defendants are entitled to both legacies.

A decree is to be entered in accordance with the views of the majority of the court.