196 Mass. 35 | Mass. | 1907
This is a bill in equity for instructions as to the persons to whom shall be paid a trust fund under the will, executed on January 12, 1864, of Thomas Blanchard, who died at the age of seventy-six, on April 15, 1864. The testator left a wife, but no issue by her, and a, daughter by a former marriage. The daughter was a widow, childless, and non compos mentis at the time the will was executed, and continued so until her death in 1867. The testator left no other descendant. His widow subsequently remarried, and died in 1905. The material provision of the will is :
“ I give, devise and bequeath to my nephew Stillman S. Blanchard of Boston all the rest and residue of my estate, real and personal, in trust to invest the same, and to keep the same safely and securely invested, and after paying taxes, insurance and all other charges, to pay over the net income thereof, one half to my wife, and the other half to, or for the benefit of, my daughter, as hereinafter directed, during the joint lives of the two; and if my daughter shall die during the life of my wife, and leave issue, then to pay to said issue one half of said net income, and the other half to my wife during her life ; and if my
“ So long as the condition of the mind of my daughter is such as to require a guardian for her, I direct the said trustee to pay her guardian so much of the income hereinbefore appropriated to her as may be necessary for her comfortable maintenance and support, and to add the balance of said income if any there be, to the principal of the fund; and if thereafter there shall be a deficiency of income in any year, or if from any other cause, a sum greater than her share of the annual income of the fund, should be deemed necessary or desirable for her comfort, then the trustee may devote such additions or reserves of income to such purpose; but if no such exigency should arise during the life of my daughter, the said reserves shall be disposed ol as if they formed part of the original principal of the trust fund upon her decease.”
The fund now amounts to about $85,000, all in personal se-, curities, real estate formerly constituting a part having been sold. It was agreed by the parties, and incorporated in the reservation of the single justice, by which the case is brought here, that Thomas Blanchard, Jr., being now alive, is entitled to one half of the trust fund. This inquiry relates only
Again, the vesting of any interest in Thomas Blanchard, Jr., or his issue, is by the clear terms of the will made contingent upon one or the other being alive at the time of the distribution, that is, at the death of the last surviving life tenant. This point has been treated as tending to show that “ the vesting of the whole was postponed till the arrival of the event on which the distribution is made to depend.” Hale v. Hobson, 167 Mass. 397, 398. Hall v. Hall, 123 Mass. 120.
Then, too, there is an absence of the consideration, which, when present, has a tendency to indicate that a vested remainder is created, in that the limitation is not to the children of the testator. Weight oftentimes is attached to this factor. Gibbens v. Gibbens, 140 Mass. 102. Stanwood v. Stanwood, 179 Mass. 223. Bancroft v. Fitch, 164 Mass. 401. Smith v. Rice, 130 Mass. 441. Denny v. Kettell, 135 Mass. 138. Harding v. Harding, 174 Mass. 268.
Moreover, the will contains no words of present gift to the “ right heirs ” of the testator. The trustee is directed to pay the income of the fund, with the exception of the accumulation, to the wife and daughter, and to the survivor and the issue of either, if deceased, until the death of the last survivor, when only the principal fund is to be divided by the trustee. This language is some indication of an intent that the title should not vest until the period of distribution arrives. The word “ then ” in the sixth line from the last of the first paragraph of clause above quoted, in connection with the language which goes before and that which follows, is used not to state a consequence of the contingency immediately preceding but to fix a point of time, while “ distribute ” in the next line describes a vesting of the interest. Eager v. Whitney, 163 Mass. 463. Peck v. Carlton, 154 Mass. 231. Hale v. Hobson, 167 Mass. 397.
Another consideration is that the chief care of the testator in framing his will was for the support of his widow and daughter
The provisions of the will respecting these matters show that he had carefully elaborated, presumably, from the phraseology of the instrument, with the assistance of counsel, a scheme intended to cover every contingency which Providence might have in store for his immediate family. After having exhausted his ingenuity respecting these near objects of his bounty, in order that there might be no intestacy, and thereby, the daughter or her heirs at law receive the residuum, he contemplated the possibility that, at the death of the last survivor of his immediate family, it might then for the first time be conclusively ascertained that no descendant of his would survive, and, if that contingency should happen at that time, then one half, his estate should go to Thomas Blanchard, Jr., (who, although no kindred of the testator and not in fact adopted by him, had yet been an inmate of his household for many years,) or his issue, and the other half to those who at that time might answer the description of the testator’s “ own right heirs.” The general plan of the will indicates an intent that only upon the happening of this last contingency should those, who now turn out to be his beneficiaries, be ascertained. Eager v. Whitney, 168 Mass. 463. Cronan v. Adams, 185 Mass. 436. Hale v. Hobson, 167 Mass. 397. Fargo v. Miller, 150 Mass. 225. Wharton v. Barker, 4 Kay & Johns. 483. White v. Springett, L. R. 4 Ch. 300. Wood v. Bullard, 151 Mass. 324, 335, and cases cited. Crapo v. Price, 190 Mass. 317.
It is not necessary to decide whether the words, own right heirs,” mean common law heirs, as appears to be the law in some jurisdictions, Garland v. Beverley, 9 Ch. D. 213, Owens v. Gibbons, [1902] 1 Ch. 636, Mason v. Baily, 6 Del. Ch. 129, In re McCrea, 180 Penn. St. 81, or whether they are the same in effect as “ heirs ” or “ heirs at law ” and include the surviving wife. Olney v. Lovering, 167 Mass. 446. International Trust Co. v. Williams, 183 Mass. 165. Gray v. Whittemore, 192 Mass. 367. See also Brown v. Wright, 194 Mass. 540; Minot v. Harris 132 Mass. 528.
The residuum is to be distributed among those persons who would have been the testator’s own right heirs if his wife had
The distribution is to be made as provided in R. L. c. 133, § 1, cl. 5. At the time of the decease of the testator’s wife in 1905, the nearest living kindred of the" testator were nineteen grand nephews and grand nieces, who will share per capita in the residuum, and the children of two deceased grand nephews and of one deceased grand niece, who will take by right of representation the shares which their deceased parents respectively
would have taken if living. Balch v. Stone, 149 Mass. 39. Codman v. Brooks, 167 Mass. 499. Paine, petitioner, 176 Mass. 242.
So ordered.