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Keywords

trustwillbail
liabilitytrustwill

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McCurdy v. McCallum, 186 Mass. 464, 72 N.E. 75

Facts

The case arose from a bill filed by judgment creditors in Nova Scotia to apply judgment money held by a bailee in Massachusetts, which was bequeathed to Susan B. McCallum under the will of Jane McCallum. The will included a clause that bequeathed $2,000 to Susan, free from the control of her husband and son, with a request that she give the amount to her daughters upon her death. The interpretation of the word 'request' in this context was central to the case, as it determined whether the bequest was absolute or created a trust.

The clause in question reads as follows: ‘5. To Susan McCallum wife of Hugh McCallum, I devise and bequeath the sum of two thousand dollars ($2000.00) this amount is to be free from the control of her husband and her son Guy McCallum, and I request the said Susan McCallum at her death to give the same to her two daughters Vesta Vane McCallum and Marion McCallum, but the recipt of the said Susan McCallum for the said amount shall be a sufficient discharge to my executors therefor.’

Issue

The main legal issue was whether the bequest to Susan B. McCallum was absolute or upon trust for her daughters.

The first question is whether the bequest made to Susan B. McCallum in the fifth clause of the will of M. Jane McCallum is absolute or upon trust.

Rule

The court applied the principle that the intention of the testator prevails in the interpretation of wills, provided it is consistent with the rules of law, and that the meaning of specific terms must be understood in the context of the entire will.

In England, as here, the cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.

Analysis

The court analyzed the language of the will, particularly the fifth clause, in conjunction with the overall structure and intent of the testator. It concluded that the use of the word 'request' was imperative, indicating that Susan was to hold the $2,000 in trust for her daughters. The court noted that the provision requiring Susan's receipt for the amount suggested a trust rather than an absolute bequest.

In view of the language of the fifth item when read in connection with the other parts of the will, and of all the circumstances, we are of opinion, upon the authorities placed before us, that by the law of Nova Scotia the word ‘request’ in the fifth item of the will is imperative, and that Susan McCallum holds the $2,000 with the right to use the income during her life, and that the principal is charged with a trust in favor of her two daughters.

Conclusion

The court concluded that the bequest was not absolute but rather held in trust for Susan's daughters, leading to the dismissal of the bill with costs.

In accordance with the terms of the report, therefore, the following entry must be made: Bill dismissed, with costs.

Who won?

The prevailing party was Susan B. McCallum, as the court upheld the interpretation of the will that established a trust for her daughters.

The inference is strong that the last clause of the fifth item was inserted for similar reasons, namely, that the person who was not legally entitled to the legacy might receive it and discharge the executors from further liability.

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