325 Mass. 201 | Mass. | 1950
Walter J. Wixon died on August 13, 1942,
The testator was survived by his widow and his son, Samuel, and his daughter, Anna, and two grandchildren, the children of Samuel by his first wife, Louise N. Wixon. Samuel obtained a divorce from Louise, which became absolute on November 21, 1947. In January, 1948, he remarried and at the time of the hearing in the court below his wife was expecting a child. On March 2, 1948, a son, Robert Wixon Taylor, was born to the testator’s daughter, Anna, who had married after the date of the will. At the time of the hearing she was with child.
After finding the foregoing facts, the judge found that the testator was fond of children; that he was kind and attentive to the two grandchildren whom he knew; and that he “particularly spent a great deal of time with his grandson, Walter J. Wixon 2nd, taking him for walks, playing games with him, and participating in other activities” with him.
The petitioner seeks instructions as to whom and in what amounts the gift of income under the third clause is payable. It also requests similar instructions with respect to the distribution of principal under that clause. Louise N. Wixon appeared and answered as guardian for her two children,
Rightly no contention is made that the judge erred in limiting his instructions to the petitioner’s present duties. See Hill v. Moors, 224 Mass. 163, 165; Flye v. Jones, 283 Mass. 136, 138. The controversy here is between the guardian of the grandchildren who were born prior to the testator’s death and the guardian ad litem of the after-born grandchildren. The sole question argued is whether after-born grandchildren can share in the income of the trust created under the third clause of the will. We confine our decision to this question. Reading the third clause in the light of established principles of construction, we are of opinion that it manifests an intention to include after-born grandchildren. The will is inartificially drawn. At the outset the third clause makes a gift of income to “my grandchildren” with no limiting or qualifying words. It i& true that later in the same sentence there is a provision that when “they become 25 years of age . . . the principal . . . is to be divided between them” (emphasis supplied). While the word “between” generally is used in connection with two persons or objects, that is not always the case; there are times when it is used as the equivalent of “among” and we think that it was used in that sense here. See Spencer v. Adams, 211 Mass. 291, 295. The following sentence goes on to provide that “In case any of these children”
The gift of income to after-born grandchildren does not, as the appealing guardian argues, violate the rule against perpetuities. The gift was to the petitioner in trust “to pay over to my grandchildren, quarterly, the net income therefrom, until they become 25 years of age.” Each grandchild living at the testator’s death then became entitled to a share in the income and each after-born grandchild becomes entitled to a share therein at birth, provided, of course, he is born before the eldest grandchild reaches the age of twenty-five, at which time the class would close. Hubbard v. Lloyd, 6 Cush. 522. Simes, Future Interests, § 382. Restatement: Property, § 295, comment j. At the testator’s death, or, in the case of after-born grandchildren, at birth, the interest of each grandchild in the income would be vested even though the bequest would open from time to time to let in other grandchildren. Rich
The final decree, however, must be modified. As it now reads it gives the income only "to the grandchildren• of the testator living at the time of each quarterly distribution who are under 25 years of age." Since, as we hold, the interests of the grandchildren in the income are vested, it follows that the share of the income to which any grandchild would be entitled would, in the event of his death, pass to his legal representative. Richardson v. Warfield, 252 Mass. 518, 522. Accordingly the decree should be modified by striking out paragraph 1 thereof and substituting theref or the following: The petitioner shall pay the income of the trust estate in equal shares to such of the grandchildren of the testator as are living at the time of each quarterly distribution provided for by said will and to the personal representatives of such of said grandchildren as are deceased. As so modified the final decree is affirmed. Costs and expenses of appeal are to be in the discretion of the Probate Court. ,
So ordered.
The use of the word “children” here is an obvious error.