Gould v. Chamberlain, 84 Mass. 115 (1903)
Author: Anonymous

Facts: The deceased, Mellen Chamberlain, died testate, but before the date of his will his annual principal was diminishing b/c his expenses exceeded his income.  Subsequent to the execution of the will and prior to the execution of the codicil, he was told he would probably live through 1900.  The testator remarked that his principal would be further depleted than expected.  Twice before the execution of the will and before the execution of the codicil he consulted his executors as to whether the estate could sustain their provisions.  The reply was that it was doubtful.

Issue: Whether certain legacies given in the codicil are cumulative or substitutional in respect of legacies given in the will to the same persons, and whether certain evidence admitted was done so properly?

Holding: By statute wills must be in writing and parol evidence of a testator’s intentions are forbidden to alter or vary the terms of an instrument.  The evidence admitted tended to show the testator’s knowledge and appreciation of his situation and not his intentions, thus admissible.

Procedure: Probate Court, Suffolk Cnty, Bill by Gould against Chamberlain for the construction of the will of the deceased Mellen Chamberlain. Supreme Ct. Affirmed.        

Rule: A second instrument is to be treated as an addition to the first in the absence of anything signifying a different intention, and the intention of the testator must be the guide of the court.

Rationale: The legacies in the codicil are intended as substitutional rather than cumulative.  The natural interpretation is that he intended it as the last and final expression of his purposes taking the place, as far as it went, of the will.  Its general character purports to be a disposition of the whole estate, real and personal. It states “my estate real and personal I bequeath as follows:” which is copied from the will.  This indicates an intention to substitute the second legacies for the first.  This intention may be defeated if the legacies are regarded as cumulative.

Because of the attendant circumstances, the testator’s intention was to substitute the legacies given in the codicil for those given to the same persons in the will.  The fact that he did not expressly state that some of the cash legacies in the will, not included in the codicil, does not necessarily show that the legacies in the codicil are cumulative.