23 A. 45 | R.I. | 1885
Two questions have been submitted to us under the following clause of the will of Thomas Whipple, deceased, to wit: "I give, devise, and bequeath to my daughter, Martha Ann Whipple, during her natural life and at her decease to her children, one half of a lot and half of all the buildings and improvements thereon, situated in the city of Providence, at a place called Constitution Hill, and is the same house formerly *79
owned by George Carpenter and myself. One quarter of said house and lot I devise to Sarah Loring, her heirs and assigns, and the remaining quarter of said house and lot I give and devise to Julia Barney, her heirs and assigns, for and during the natural life of each of them; but if any of them or all may die leaving no child or children, then my will is that each respective right shall be divided equally amongst my daughters, Amey Arnold, Sarah Loring, and Julia Barney, their heirs and assigns forever." Martha Ann Whipple died before her three sisters, leaving no child. The first question is whether, on her decease, the whole estate, or only her half, became divisible among the three sisters. We think her half only became divisible; for otherwise, instead of using the distributive phrase, "each respective
right," the testator would have said "the whole estate" shall be divided equally, etc. The second question is whether Sarah Loring took under the will an estate tail or an estate in fee simple, subject to a gift over by way of executory devise to Amey Arnold and Julia Barney on the event of her dying without leaving any child. We think she took a fee simple estate subject to such gift over. In Morgan v. Morgan, 5 Day, 517, the devise was to the testator's four sons in fee simple, with the clause following added, to wit: "And also my will is that, if my sons should either of them die without children, that his brothers shall have his part in equal proportion." The court held that the words "die without leaving children" meant dying without children living atthe death of the first devisee, and consequently that the limitation over was good as an executory devise. The case is exactly like the case at bar. In Smith v. Hunter,
Sarah Loring died leaving a son living at her death. After the death of Martha Ann Whipple, Sarah Loring made a deed purporting to convey all her interest in the estate to Hannah Loring in trust. We think that under that deed Hannah Loring took all her interest subject to said trust, and therefore no part of the estate descended to the son.