222 Mass. 600 | Mass. | 1916
The testatrix, Emeline S. Jenkins, who died May 21, 1905, was a widow and left no children. Her heirs at law were her two brothers, Franklin Smith and William John Smith. Franklin died November 5, 1906, leaving a widow and four children; and William died on January 10, 1910, leaving a widow and two children. After the death of both of the brothers the will was before the court for interpretation as to the distribution of income. Bailey v. Smith, 214 Mass. 114.
The third paragraph of the first codicil is as follows: “I change the disposition of the residue of my estate under clause Fifteenth,
By reason, of the death (on February 17, 1915), of Sarah P.
We consider first, question (c): “ What person or persons are entitled to receive one half, or any other portion, of the principal of the trust property, real and personal estate, upon the death of said Sarah P. Smith?” It seems clear, from an examination of the fifteenth clause of the will as modified by the first codicil, that the testatrix intended to effect a gift of an equitable life interest in one half of the residue of her estate to her brother William, with remainder to his heirs-at-law and next of kin, subject to an annuity to his widow charged upon income. And in our opinion, the testatrix did not intend that the widow, Sarah P. Smith, should be included in the words “heirs-at-law and next of kin.” She was not a blood relation and hence not next of kin in the legal and common meaning of the words. Haraden v. Larrabee, 113 Mass. 430. Leonard v. Haworth, 171 Mass. 496. And that it was not intended to include her as a statutory heir seems plain not only from the fact that special and full provision was made for her by an annuity of $2,000, but from an examination of other parts of the will, which show that by “heirs-at-law and next of kin” she meant the children of her brothers. For instance, in the same sentence she apparently uses "heir” and “child” as synonymous. After providing that the property shall go to the heirs at law, she stipulates that the children of any deceased “child” shall take the parent’s share; and in the fifteenth clause of the will, which she must have had in mind when changing it by the first codicil, the children are severally mentioned by name, as those to whom the residue should be paid.
It is urged that the testatrix, in giving the remainder to the “heirs at law” of her brothers, used that term as meaning the then living children of her brothers, and with the intention of giving them a vested remainder, expectant upon the ending of the life estate. Haley v. Boston, 108 Mass. 576. But construing this language in connection with the whole will, we find no such manifest intent to use the word in other than its ordinary technical signification. As the heirs of William could not be ascertained until his death, the remainder to his heirs must be regarded as a contingent remainder to those persons who upon his death should
It follows from what has been said that the remainder of one half of the principal of the trust estate vested in the two cMldren of William John Smith, upon Ms decease, and that, upon the death of the widow Sarah P. Smith, the son Willard Pleis Smith became entitled to one half of such remainder, and the other half, wMch would have gone to the daughter, Helen I. Meade, if living, goes to those who have succeeded to her mterest:
The first question (a), of the trustees relates to the income wMch accrued during the three months before the death of the widow, Sarah P. Smith. The doubt arises from the language in the codicil wMch provides that “as each widow shall die one half the principal of said trust estate together with any income that may remain, whether apportionable or not, shall go to and become the absolute property of the heirs-at-law and next of kin of such brother.” In our opimon the “income that may remain” wMch the testatrix here referred to, was the part of the annuity that then had accrued in the hands of the trustees, and would have been paid to the widow if she had survived until the next quarterly day. It should be read in connection with the last sentence of the preceding paragraph, “at her decease any part of this two thousand dollars ($2000) income not taken by her shall be paid as hereinafter provided.” The rest of this accrued income was vested in the cMldren of the deceased brothers subject
Income which accrued after the death of the widow (question b) follows the principal under the express language of the will. Upon her death the rights of the parties changed radically, as already appears, one half becoming the absolute property of the son, Willard Pleis Smith, and of those who succeeded to the rights of the daughter, Helen I. Meade; the other half remaining in the trust during the lifetime of the widow of Franklin Smith.
As to question (d). Under the provisions of the will the heirs of William became seised of an absolute undivided half interest in the real estate, the trustees retaining title to the other half. No deed by the trustees is necessary. Heard v. Reed, 171 Mass. 374. Cronan v. Adams, 189 Mass. 190. Massachusetts General Hospital v. Boston, 212 Mass. 20.
Question (e).
The trustees are to be instructed in accordance with this opinion.
Decree accordingly.
The fifteenth clause is quoted in full in the report of Bailey v. Smith, 214 Mass. 114, 115.
This question was as follows: “If material, the complainants ask to be instructed whether payments heretofore made by them from principal for expenses of administration of the trust and for court proceedings incident to construction of said will should be charged against the personal property received by them as a part of the original assets of the trust, to the extent of said personal property and the balance against the proceeds in their hands from sales of real estate made by them as such trustees.”
