Davis v. Chase

<p>Bill eor instructions, filed in the Probate Court for the County of Middlesex, April 13, 1899, by the executor under the will of Louisa M. Wells, late of Lowell.</p> <p>In the Probate Court, Lawton, J. made the following decree: “ That it was the intention of the testatrix, as expressed in said clause, that her executor should expend the whole of the residue of her estate remaining after the payment of her debts, funeral expenses, the charges of administration, and the payment of one hundred dollars for perpetual care of her burial lot, in fitting up the burial lot owned by the testatrix at the time of her decease in the Lowell Cemetery, and in the purchase and erection of a monument upon said lot in her memory, and said executor is instructed to act in accordance herewith.” From this decree the respondents, all cousins of the testatrix, appealed.</p> <p>The case was heard by Barker, J., who ordered that the decree of the Probate Court be affirmed, and reported the case for the determination of the full court, such decree to be entered as justice might require.</p> <p>By the report the following facts appeared : Louisa M. Wells, the testatrix, was a single woman who died in 1886 and her will was proved and allowed in that year. The will was dated May 18, 1874. It was as follows: “ My will is that all my just debts and funeral charges be paid out of my estate as soon after my decease as may be found convenient.</p> <p>“ 2. All the rest residue and remainder of my estate, whether the same be real personal or mixed or of whatsoever name or nature the same may be, excepting the sum of one hundred dollars hereinafter bestowed, I give, devise and bequeath the same for the use and to the purpose following, viz.: the same to be converted into money as soon after my decease as may be deemed expedient and advisable by my executor, and to be expended in fitting up the burial lot owned by me in the Lowell Cemetery, and in erecting a suitable and proper monument thereon. I do give and bequeath the sum of one hundred dollars to the trustees of the Lowell Cemetery the same to be held by them and their successors in office, and the income thereof, or such part of the income of said sum as may be necessary, is to be used and expended in keeping my lot in said cemetery in proper condition.</p> <p>“ John Davis of Lowell appointed executor.”</p> <p>The property of the testatrix had been kept invested by the executor, and at the time of the hearing it amounted to about $8,000. The heirs at law contended, that the petitioner should be instructed to devote only a portion of the property in his hands as executor to fitting up the burial lot of the testatrix and erecting a monument thereon, and that the rest of the fund should be distributed among the heirs at law and next of kin.</p>