Macomber v. King

Rugg, C.J.

This is an appeal from a decree allowing the first account of the administrator with the will annexed of Elizabeth R. King, deceased, testate. The appellant is her son.

*383 After the hearing on the account had been closed, the accountant presented a petition to reopen the case in order that there might be introduced certain material evidence inadvertently omitted. There was no error in the allowance of this motion and in receiving further evidence. Reopening the case for reception of additional testimony was within the discretion of the trial judge. Smith v. Merrill, 9 Gray, 144 . Reynolds v. Missouri, Kansas & Texas Railway, 224 Mass. 379, 387 . Short v. Farmer, 260 Mass. 102, 104 .

There is no report of the evidence. At the request of the appellant the trial judge filed his findings of material facts. These must be accepted as true since they are not mutually inconsistent or plainly wrong.

The payment to Elizabeth G. E. King, a daughter of the testatrix, for services and expenses, is challenged. The finding is that these disbursements were proper and necessary for the comfort of the testatrix and that the daughter gave up a position as school teacher in order to take care of her mother, that the price charged was reasonable, and that she expected to be paid. The circumstance that these disbursements were made and services rendered by a daughter is no bar to payment. The testatrix understood, or as a reasonable person ought to have understood, that these disbursements and services were not gratuitous but that she was to pay for them. There was no error in-the allowance of this item as a charge. Sherry v. Littlefield, 232 Mass. 220 . French v. Bray, 263 Mass. 121, 123 . Tower v. Jenney, 279 Mass. 208 .

The payment of this account was rightly made out of the money of the estate in savings banks. The will of the testatrix was somewhat informal. By it she disposed of several parcels of real estate by specific devise, and gave several small pecuniary bequests. After a devise of a life estate to her husband in the half of the homestead farm owned by the testatrix, and several bequests, occur these words: "The remainder is to be kept in the banks and the interest used to pay the tax on my part of the estate, and for necessary repairs to buildings while my husband lives.” *384 This is followed by other pecuniary bequests and by specific devises. The quoted words constitute a general and not a specific legacy and did not create a trust. Cooney v. Whitaker, 192 Mass. 596 . Bates v. Kingsley, 215 Mass. 62 . First National Bank of Boston v. Union Hospital of Fall River, 281 Mass. 64, 68 . Conway v. Shea, 282 Mass. 25 . The property covered by these words was available for the payment of debts. Such “remainder” could be determined only after the debts of the estate had been paid.

The will contains bequests of $5 each to six named grandchildren and two daughters-in-law. In the same group are bequests of $10 each to four of her children and one of $25 to her husband. Other more substantial provisions are made for her husband and children. One of the six grandchildren owed the testatrix a note for $1,000 secured by mortgage on real estate, which was overdue and which the accountant was not able to collect. The appellant contends that the payment of the legacy of $5 to this grandson should be disallowed because of G. L. (Ter. Ed.) c. 197, § 25, to the effect that a “debt due the estate of a deceased person from a legatee ... of such estate shall be set off against and deducted from the legacy to such legatee . . . .” As matter of technical verbal construction, it is possible to hold that this section is applicable. The legacy, however, is very small and is in a context indicative of an intention on the part of the testatrix that it should be paid in fact as a keepsake or special remembrance rather than by set-off against the note. The intention of the testatrix should prevail. Bigelow v. Pierce, 179 Mass. 331 .

There was no error in the denial of the several requests for rulings. They were either unsound in law or inapplicable to the facts found. They need not be examined in detail. So far as they need be noticed, they are disposed of by what has been said. The other contentions of the appellant need not be discussed. There is no merit in them. They all are covered by the adverse findings of fact.

Decree affirmed.