
    Frank E. Farnham & another, executors, vs. Stephen Barker.
    Essex.
    November 7, 1888.
    January 2, 1889.
    Present: Morton, C. J., Field, Devens, C. Allen, & Knowlton, JJ.
    
      Will — Construction — Extrinsic Evidence.
    
    A testator, who in his lifetime had given to his housekeeper his promissory note expressed to be for “ extra work and care ” during his illness, by his will, made three and a half years later, bequeathed to her a sum of money, upon condition “ that she, after my decease, bring no bill against my estate for labor and services rendered, in which case the amount of the bill so rendered shall be deducted from the said legacy, and the balance only, if any, be paid to her.” She continued to be the testator’s housekeeper from the time the note was given until his death, after which she presented the note, and was paid the amount of it by his executors. Held, that the note was not a bill, within the meaning of the will, and that she was also entitled to the legacy; and that there was no such ambiguity in the will as to render extrinsic evidence as to its meaning competent.
    Appeal, by Stephen Barker, from a decree of the Probate Oourt allowing the final account of the executors of the will of his father, Henry Barker. The will, which was dated May 1, 1882, contained the following provision, which alone is material.
    “ Second. All the rest and residue of my property, bóth real and personal, choses in action, and property of every kind, name, and nature whatever, that I may die seised and possessed of, I give, devise, and bequeath in the way and manner following, to wit: ... I give to Philura S. Barker, widow of my son William Barker, absolutely, free from the interference and control of any one, to her and her heirs’ own use and behoof forever, but upon the following conditions : that she, after my decease, bring in no bill against my estate for labor and services rendered, in which case the amount of the bill so rendered shall be deducted from the said legacy, and the balance only, if any, be paid to her.”
    At the hearing, before Morton, C. J., the following facts appeared in evidence. Philura S. Barker is a widow of a deceased son of the testator. From the time of her husband’s death until the death of the testator, a period of twenty years or more, she kept house for the testator, and attended and cared for him when he was ill. On November 1, 1878, the testator, who had been ill a great deal, gave her the following note: “ Boxford, Nov. 1st, 1878. For extra work and care in my sickness, I promise to pay Philura S. Barker eight hundred dollars on demand with interest. Henry Barker.” After the death of the testator she presented the note for payment to the executors, who paid the same in full, the principal and interest amounting to $1,034.53, and were allowed therefor in their first account. The executors also .paid to Philura the full amount of her legacy in addition to the note, and asked to be allowed the same in their final account. The appellant contended that, under the condition in the will, Philura was entitled to so much of the legacy only as should remain after deducting the amount of the note.
    Evidence was offered by the appellees, and objected to by the appellant, that the testator, when giving directions to the scrivener for drawing his will, spoke of the note, and said, “I want that note paid, but no bill for services rendered later, because I intend that Philura shall share equally with my children ”; that after reading the will and before signing it he said, “ This gives her the note, but don’t give her anything else for services”; and that, upon the scrivener’s replying, “Yes, that is the way I understood you,” he then said, “ I want her to have the note, but no more.”
    The judge found as a fact, if the paroi testimony is competent, that the testator intended that the will should not cut off the note, but that it should be paid in addition to the other provision made by the will in favor of Philura; and reserved the case for the consideration of the full court.
    
      
      S. C. Bancroft, for the appellant.
    
      B. F. Brickett & C. H. Poor, for the executors.
   Knowlton, J.

The will of Henry Barker gave to Philura S. Barker a legacy, upon a condition expressed in these words: “that she, after my decease, bring in no bill against my estate for labor and services rendered, in which case the amount of the bill so rendered shall be deducted from the said legacy, and the balance only, if any, be paid to her.”

The only question in the case is, whether the note which Philura S. Barker held against the testator when the will was made, and which she presented for payment after his death, was a bill against his estate for labor and services within the meaning of the will. The note was . given three and a half years before the will was made. "It purported to be for extra work and care during the sickness of the maker. Prima facie, the work and care referred to in the note were paid for by it, and the payee’s former claim became merged in an interest-bearing promise to pay. When the will was made, she had rendered services for three and a half years more, for which she had not been paid, and it was apparently expected that she would continue to serve the testator in like manner so long as he should live. The quoted language of the will is given its full meaning by holding it applicable to a bill which the legatee might have presented for services rendered after the date of the note, before and after the will was made. Upon the facts of this case, it would be a strained construction to extend it so far as to include the promissory note.

There was no such ambiguity in the will as to make the paroi evidence competent.

Decree of the Probate Court affirmed.  