353 Mass. 358 | Mass. | 1967
A testatrix left property in trust to pay the income to her nephew A for life and then “in equal shares to such of” A’s children, B, C, and D, “as may be then living, and to the issue then living of any of said children who may have previously deceased, -such issue to take their parent’s share by right of representation,” and “upon the death of any of said children . . . [to pay] his or her share of the income in equal shares to his or her children and to the issue of any deceased child by right of representation,” and in case B, C, or D “die leaving no issue, or in case of the
C, the last survivor of B, C, and D, died leaving no issue in 1966. Two children of B and four children of D were then living. There was also a grandchild of D, the son of a deceased child of D. Prior to the death of C, the two children of B had been sharing one-third of the trust income and the four children and one grandchild of D had been sharing one-third of such income, each taking one-fifth of such one third.
A Probate Court decree instructed the trustees to make distribution in seven equal shares per capita among the two children of B and the four children and grandchild of D. The children of B appealed.
The language of the termination gift, read literally, directs a per capita distribution among the children of B, C, and D (with the son of D’s deceased child taking the share which his parent would have taken). During C’s life (and after the death of B and D), income was distributed to C and to the issue of B and D essentially on a per stirpes basis. This, however, does not sufficiently show an intent contrary to the literal meaning of the termination gift. Cammann v. Abbe, 258 Mass. 427, 429-430. Gleason v. Hastings, 278 Mass. 409, 412-414. B. M. C. Durfee Trust Co. v. Borden, 329 Mass. 461, 462-463. See Welch v. Phinney, 337 Mass. 594, 598; Newhall, Settlement of Estates (4th ed.) § 355; Page, Wills (Bowe-Parker ed.) § 36.10. See also Restatement: Property, §§ 300, 301;
The decree is affirmed. Costs and expenses shall be in the discretion of the Probate Court.
So ordered.