184 Mass. 136 | Mass. | 1903
William Brown died leaving a wife and two daughters, Mrs. Parker and Mrs. Griffith, and a son, Henry Howard Brown. After giving a pecuniary legacy to each child, he gave the residue of his estate to his wife for life, and on her death, by the seventh clause now in question, he bequeathed $180,000 in trust and the residue equally among his three children. His estate amounted to about $400,000.
The widow of the testator has since died, the trust provided for by the seventh clause was duly created, and the plaintiff is now the trustee under it. Mrs. Parker died in 1902, without issue. Mrs. Griffith is a widow with three children and no grandchildren, and the son, Henry Howard Brown, is alive and has a wife and a married daughter, who, with her husband, Thomas Earle White, and a child, Thomas Earle White, Jr., are also alive.
The clause in question is obscure, and in no event can receive a construction which is altogether satisfactory.
Where property is given to several for life and then over at their decease, it has been held in some cases to go over together on the death of the. survivor, and in other cases to be distributed piecemeal on the respective deaths of the life tenants.
Where the gift over was a gift per capita, it was held in Loving v. Coolidge, 99 Mass. 191, that the words “ at their death ” took the fund over as a whole on the death of the survivor, and conversely in Dole v. Keyes, 143 Mass. 237, it was held that where the life tenancy lasted until the death of the survivor the gift over was a gift pev capita. But on the contrary, where the gift over is to the issue of the life tenants pev stivpes, the words
These are general rules of construction. The question in each case is what was the intention of the testator, and this intention is to be gathered from the particular provisions and the general scheme of the will, having in mind the general rules of construction as aids.
In the case at bar the general scheme of the will was equality among the testator’s children. He gave each child $10,000 and an equal share of the residue, and in addition he provided against the possible improvidence of his children by putting in trust the $180,000 in question.
In the clause in question it is provided that the “ children then living” of the testator are to share in the distribution when it tabes place. That negatives the fund being kept together for the joint lives of the three life tenants. Again it is provided that the income is to be paid to the three “during the term of their natural life,” and that the distribution is to be made “after their decease.” That negatives the distribution being made on the death of the first life tenant to die. The use of the word “ life ” in the singular, if significant, tends to show that the testator was thinking of the life of each, and to make it probable that he used the words “ at their decease ” in a similar sense.
We have been asked by Mrs. White to construe the words “after their decease” to mean after their decease without issue; and by the guardian ad litem, of Thomas Earle White, Jr. to construe the clause “ equally among my children then living, and the issue of any deceased child or children giving to the issue of any deceased child the share to which the parent if living would have been entitled,” to mean “ among my issue then living, such issue to take according to the stocks,” or that the gift to and among “ my children ” should be construed to and among “ the children of my children.” But we cannot do that. To do so
Counsel for the son Henry Howard Brown have argued that the thing to be divided “ after their decease ” is the “ rest and residue of the trust premises aforesaid,” and that that provision is not consistent with a distribution of one third on the decease of the first life tenant. But little weight can be given to the words “ rest and residue ” in any event. If the provision “ after their decease ” is not taken distributively, the words “ rest and residue ” can have no effect because there would be in that contingency but one distribution, and that one a distribution of the whole, either on the death of the first or the last of the three life tenants. If the words “ after their decease ” are taken distributively, these words have a meaning when applied to the second and third distributions, although they have no meaning in connection with the first.
The clause “ giving to the issue of any deceased child the share to which the parent if living would have been entitled,” is on its face absurd when applied to the issue of the life tenant on whose death a distribution takes place of the share, to the income of which the life tenant was entitled during his life. But when applied to the issue of a pre-deceased life tenant on the distribution of the share of the second or last life tenant (speaking of a life tenant’s share in the sense stated above) it is intelligible. And if it is taken to mean that the distribution among issue shall be per stirpes in all cases, it is intelligible in all connections.
Looking at the clause as a whole, and to the general scheme of the will, and bearing in mind the general rules of construction already established in this connection, we are of opinion that each of the three children became entitled to the income of an undivided third of the trust fund during their respective lives, that on the death of each life tenant there is to be a distribution of the principal of the third to the income of which that life tenant was entitled during his or her life, and that that third is to be then distributed among the children of the testator then living and the issue of deceased children including the issue of the life tenant whose share (in the sense stated above) is being distributed, such issue taking per stirpes. The objection to this construction is the treatment which is given by it to the
Decree accordingly.
