254 Mass. 347 | Mass. | 1926
The testator devised and bequeathed the residue of his estate to the petitioners in trust to manage, control and invest, and to pay his wife if she survived him the income during her life. If, however, the income proved inadequate and insufficient for her personal enjoyment, comfort and maintenance, they were to pay her such part of the principal as she might in her judgment require for the purposes stated. By the second clause the testator directed that upon the death of his wife the trustees as soon as convenient and without detriment to his estate were to divide one third thereof among his heirs at law with the exception of his grandson Edmund Ball Hopkins, who was expressly excluded from participation in this part of the estate í¿as he is hereafter provided for, in the same proportion that they would have taken had I died intestate.” Under the third clause the remaining two thirds was to be held in trust for the grandson; and the income used for his care, maintenance and education as the trustees in their judgment may deem expedient until he is twenty-five years old when the trustees are directed to give him one half of the principal, the remainder to be held in trust and the income or increment to be added to the principal until he reaches the age of forty years when the principal with all accumulations is to be transferred to him, his heirs and assigns forever. The widow having died, the trustees had in their possession and control real and personal property amounting approximately to $125,000 and the question propounded is, to whom should one third of the principal be paid.
The heirs at law of the testator are to be ascertained under the scheme of the will as of the date of his death. Abbott v. Bradstreet, 3 Allen, 587. Ball v. Holland, 189 Mass. 369.
The express exclusion of the grandson, left the widow as the sole heir at law, who, although given an eqMtable interest or estate for life, also took the remainder at Ms death, even if it never could vest in possession. Cushman v. Arnold, 185 Mass. 165, 169. The widow having died-testate, the trustees are instructed to pay one third of the principal to the respondent Freelon Q. Ball, executor of her will.
It follows that the decree of the court of probate directing payment to Edmund Ball Hopkins must be reversed, and a decree is to be entered in conformity with tMs opimon, with costs taxed on the fund as between solicitor and client in the discretion of the court.
Ordered accordingly.