Opinion
Decided February 7, 1933.
Bequest to A of "all my linen, silver, books . . . and request her to distribute them to the persons named in a letter . . . of instructions which I shall leave addressed to her." The memorandum subsequently prepared by the testatrix, enumerating various gifts, having been denied probate as part of the will, and without appeal, the property in question is a part of the estate subject to sale for the purpose of paying legacies. Where the assets of an estate are insufficient to pay the pecuniary legacies, any issue between the residuary legatee and the statutory distributee of intestate estate is immaterial.
PETITION, for instructions by the executors of the will of Caroline G. B. Cooksey.
Clause 4 of the will reads as follows:
"Fourth: All my wearing apparel, jewelry and all other articles of personal use or adornment, except those mentioned in paragraph First of this will, all of my linen, silver, books, pictures and household effects, except those mentioned in paragraph First of the will, I give and bequeath to Florence M. Hastings, wife of Russell Hastings, 16 Emerson Street, Brookline, Massachusetts, and request her to distribute them to the persons named in a letter or memorandum of instructions which I shall leave addressed to her. Any of the articles not mentioned in said letter or memorandum of instructions I give and bequeath to the said Florence M. Hastings personally and if she is not living to her children. If the said Florence M. Hastings does not survive me I direct the person who administers my estate to distribute them to the persons named in the letter addressed to said Florence M. Hastings."
A memorandum subsequently prepared by the testatrix, and enumerating about fifty different gifts was denied probate as a part of the will, and no appeal was taken.
The assets of the estate are not sufficient to pay the pecuniary legacies in full.
The executors ask whether the articles mentioned in the memorandum go to Mrs. Hastings, or "become part of the general estate or pass as intestate to Harrison G. Bridge, sole heir at law."
Transferred without ruling by Burque, J.
Roy M. Pickard, for the executors.
McLane, Davis Carleton, by brief for Bridge.
The request for instructions relates solely to the articles described in the "letter or memorandum which I shall leave addressed to her." The document referred to was disallowed when offered for probate as a part of the will and no appeal from that decree was taken. The inquiry is whether these articles go to the party who was to distribute them if the testatrix's plan had been made effective, or whether they go to the residuary legatee or pass as intestate estate. As the case states that the assets are not sufficient to pay the pecuniary legacies in full, any issue between the residuary legatee and the statutory distributee of intestate estate is immaterial.
The will contains no evidence of any purpose to give these articles to Mrs. Hastings. She was merely the agent selected by the testatrix to carry out the latter's wishes. This is quite conclusively shown by the alternative provision that another should perform that duty in the event that Mrs. Hastings predeceased the testatrix.
The executors are advised that the property in question is a part of the estate subject to sale for the purpose of raising funds to pay legacies.
No question has been presented as to Mrs. Hastings' title to other property of the classes mentioned in the paragraph under consideration. By the terms of the will all such property not mentioned in the memorandum went to her.
Whether the memorandum, although ineffective as a testamentary disposition of the articles therein described, was yet a sufficient limitation of what should go to Mrs. Hastings, so that she would take the articles not so described, is a question as to which the executors have not asked for instructions and upon which no opinion is expressed.
Case discharged.
All concurred.