Bowditch v. Andrew
90 Mass. 339
Mass.
1864
Check Treatment
Hoar, J.

The power and duty of this court, as a court of equity, to decree the termination of a trust, and a conveyance of the trust estate to the parties beneficially interested in it, when the whole objects and purposes of the trust have been accomplished, the interests created under it have all vested, the parties request it, and the trustee consents, cannot be doubted. Smith v. Harrington, 4 Allen, 566.

The case then presents but two questions: first, whether the direction to the trustee to pay over to the widow of the testator from time to time such parts of the income of his estate as should seem to her and the trustee necessary for the maintenance of his family and the support and education of his children has become inoperative by the death of all the children, the sale of the house in which the family resided, and the widow’s ceasing to keep house for herself; and secondly, whether the equitable interest which was given to the children was a vested or contin gent interest.

. The word “ family ” may, undoubtedly, sometimes be so used *342as to include a wife as well as children. Indeed, it would usually be so understood, if there were nothing to show that the contrary were intended. And we think the whole language of the will shows that it was meant to include the wife and children, while they should live together and thus constitute a family. The will made no other provision for the children during the life of their mother than that which was contained in this clause. A very considerable amount of property was given to the widow, for her sole and exclusive use and benefit. But the testator seems to have contemplated that during the whole life of his widow there would be a household to be maintained. His children were young, and for a considerable period, at least, would be likely to live, with their mother, and be dependent upon her. And we think it was in reference to this probability that he used the- phrase “ maintenance of my family;” in addition to “ the support and education of my children.” The first had reference to the expenditures necessary for' the joint maintenance of those who should live together collectively; and the second was intended rather to provide for the children separately, as they should cease to continue members of the family, on their marriage, or leaving home for purposes of education or settlement in life. This view is confirmed by the language of the codicils, especially of the second codicil, in which the use of the dwelling-house is given to his “ widow and family.” And after the death of all the children without issue, the sale of the dwelling-house, and the ceasing to keep house by the widow, we do not think she can be regarded as constituting the “ family,” for whose support the provision in the will was designed.

The remaining question is not attended with any difficulty. The whole equitable interest in the residue of the estate undoubtedly vested in the children, subject to the discretionary disposition of the income during the life of their mother; the possession only being postponed till the death of the widow. The principle is fully stated in the leading case of Shattuck v. Stedman, 2 Pick. 468, and has been followed in many other cases cited in argument. Winslow v. Goodwin, 7 Met. 381. Childs v. Russell, 11 Met. 16. Furness v. Fox, 1 Cush, 134, *343Wight v. Shaw, 5 Cush. 60. Eldridge v. Eldridge, 9 Cush. 516. Barton v. Bigelow, 4 Gray, 353.

The dictum in Dingley v. Dingley, 5 Mass. 535, was the ground of the very imperfectly reported decision in Denny v. Allen, 1 Pick. 147, and was stated as one of the reasons for the decision in Emerson v. Cutler, 14 Pick. 108. But Denny v. Allen was questioned in Winslow v. Goodwin, 7 Met. 381, and in Wight v. Shaw, 5 Cush. 60, and can no longer be regarded as an authority; and Emerson v. Cutler was decided correctly upon another ground. The whole weight of authority in this commonwealth and in England is clearly in favor of treating the legacies as vested.

A decree is therefore to be entered to terminate the trust, and to authorize the trustee to pay over the residue to the personal representatives of the deceased children, in order that, if there are no claims of creditors, three eighths may go to the widow, and five eighths to the uses of the will of Forrester Andrew, the survivor of the children of the testator. Costs are to be allowed from the fund. Decree accordingly.