Estate of Spencer

MELVIN, J.

This is an appeal from an order of partial distribution in the estate of Henry F. Spencer, deceased, by certain legatees under the will.

The whole controversy centers around the intended meaning of the word “personal” as inserted by testator’s order in the will after the reading of the first typewritten draft, and the substitution of the number “15” for the number “26.”

The will after two paragraphs, one directing the payment of debts and the other bequeathing a certain watch to a friend, provides for the disposition of the remainder of the property in twenty-six numbered “clauses” and preliminary to these clauses is the direction that those from and including one to and including fifteen shall be paid in full even if any deficiency must be made good by abatement or cancellation of legacies from and including sixteen to and including twenty-four. These latter are all legacies to religious, educational, and eleemosynary societies or corporations, while the first fifteen are to persons. It is evident, therefore, that the mind of the testator was directed to the two general classes of bequests, namely, one to personal and another to artificial entities. It is to be noted, further, that by the first “clause’’bequests are made to Henry Spencer Smith and Lucia W. Smith, children of a deceased sister. Small bequests are also made therein to three sons of Bradford Smith “in token of remembrance,” but it does not appear whether or not said Bradford Smith was related to the sister of the testator. In the “clause” numbered two a bequest is made to Lucy A. Weed, testator’s sister. Clause twenty-five contains a bequest to a religious news

[516]

paper. The final provision, number twenty-six, so far as pertinent to this discussion is as follows:

“All the rest, residue and remainder of my estate, real, personal and mixed, which I may own or possess at the time of my death, or may in any way be entitled to, and all rights in action as well as in possession, I give, devise and bequeath in the manner following, to wit:

“To Henry Spencer Smith and Lucia W. Stimson, hereinbefore mentioned as Lucia W. Smith, one-eighth part each, and one-fourth part I give, devise and bequeath to my sister, Lucy A. Weed, and the remaining one-half part to the personal legatees named in the foregoing clauses of this my will from and including one to and including fifteen in proportion to each of said legatees as the amount of his or her legacy bears to the total amount of the legacies bequeathed. ’ ’