Waring v. Loring

Wilkins, J.

(dissenting). This court has recognized that a person who is an heir of a testator is not barred from sharing in any intestate distribution simply because that person was a life beneficiary of certain property under a will. See Langlois v. Langlois, 326 Mass. 85, 89 (1950), and cases cited, including Nickerson v. Bowly, 8 Met. 424, 431-432 (1844). We have also recognized, however, that, although there is a partial intestacy under a will, provisions in the will may properly influence who the recipients of intestate property will be. See National Shawmut Bank v. Zink, 347 Mass. 194, 196 (1964); Langlois v. Langlois, supra; Old Colony Trust Co. v. Johnson, 314 Mass. 703, 711-712 (1943) (husband with a life interest takes a share in intestate property “in the absence, as here, of anything in the will to evidence clearly an intention to exclude him from any further interest in the estate of the testatrix”); Bragg v. Litchfield, 212 Mass. 148, 152-153 (1912).

*429In Bragg v. Litchfield, supra, the widow of the testator was excluded from sharing as an intestate taker in property not disposed of by her husband’s will. The court decided that the testator’s detailed testamentary provisions for his wife created “[t]he unavoidable inference . . . that he did not intend that she should have any part of the principal of the estate except” tangible personal property specifically given to her. Id. at 152-153. The testator gave his wife all his tangible personal property of certain kinds; he directed that she have the income from the residue of his estate, with the power to sell and reinvest; and provided (but incompletely) for the disposition of the residue of his estate. The court recognized in the Bragg case (see id. at 152) the general principle of Nickerson v. Bowly, supra, but found it to be inapplicable.

The case now before the court has many similarities to the Bragg case but, unlike the Bragg case, the will we deal with here has explicit language limiting the widow’s rights. Frank E. Peabody gave his wife outright their home and household contents. After numerous specific legacies, Peabody divided his residuary estate into two equal shares. One share went to his wife for life and, as circumstances developed, to his daughter Amelia outright. The other share, the one involved here, went to Amelia for life, then to her issue (there was none), and then, after certain specific legacies, to Peabody’s surviving business partners if living at the distribution date (none made it). There is no suggestion that upon an intestacy or lapse of any gift Peabody’s widow or her estate should take. At the death of his daughter, he turned to his surviving business partners as supposed takers of last resort of this trust share rather than to his wife or her heirs. One might be tempted on these facts alone to find an “unavoidable inference” (Bragg v. Litchfield, supra at 152) that Peabody did not intend his widow to take other than what the will explicitly gave her.1

*430One need not rely solely on the pattern shown by the dispositive provisions of the will to conclude that Mrs. Peabody and her estate should have no share of the property not effectively disposed of by Peabody’s will. Paragraph ninth of the will says that “ [t]he provisions of this will for the benefit of my wife, Gertrude Peabody, are in lieu of dower and of all her statutory rights in or to any part of my estate.” The right of Mrs. Peabody to take an intestate share of her husband’s estate is a statutory right. We should give effect to the language as written. There is no reason to strain to read some limitation into it. It seems most reasonable to give effect to the provisions of the will so far as possible even when resorting to the statute governing intestate distribution. The suggestion that, once there is an intestacy, the will must be ignored is without logical support and is contrary to our cases, before today.

The remainder of the trust share held for the life of Amelia Peabody should be given in its entirety to Amelia’s estate.

The court’s solution to the obstacle of the Bragg case is impliedly to overrule it and then also to distinguish it. The reason it gives for overruling the Bragg case highlights the court’s conceptual error. It is not, as the court says, “difficult to conceive how there can be both a devise by implication and ■ a partial intestacy.” Ante at 424-425. Although certain property may not be *430disposed of by a will and a partial intestacy thus results, one can readily conceive that a testator may nevertheless declare, expressly or impliedly, that a person is not to take any more of his property than the will gives her. The testator did so impliedly in the Bragg case. He did so expressly in this one.