Clarke v. Rathbone, 221 Mass. 574

Clarke v. Rathbone

221 Mass. 574 | Mass. | 1915

Loring, J.

1. We are of opinion that by the true construction of the "Fourth” article of the will of the testator the principal of the trust fund is now to be distributed among the grandchildren living at the date of the death of Elizabeth P. Baury, the survivor of his children.

The defendant Alfred L. Baury, who is a child of a grandchild, contends that through the testator’s adoption of his father he (this defendant) became a grandchild of the testator arid that in this way he is entitled to a share in the distribution of the trust fund.

But after referring to the adoption of this defendant’s father, the testator made this provision: “Now be it known that it was not, nor is it my intention thereby to have the said Alfred Louis Baury share in my estate as one of my children, but that he should take under my will only the share of a grandchild.” In our opinion that clause is decisive against the contention now made by this defendant, and it makes it unnecessary to consider what would have been the result had not that clause been inserted in the will.

The contention of this defendant (the great-grandchild) to the contrary is based on the contention that this clause defines the status of the adopted child (his father) and states the property which the adopted child (who was naturally a grandchild) was to receive under the will of the testator. But that neither in *577terms nor in substance does it undertake to deal with the status of a child of the adopted child of the testator. The argument is that if that had been the intention of the testator he would not have changed the form of expression used in the first sentence (it is not my intention to have “Alfred Louis Baury share in my estate as one of my children”) to that used in the second sentence (“but that he should take under my will only the share of a grandchild”). The contention is that, if the testator had meant to provide that the status of his father (who was in fact the grandchild of the testator and by adoption his child) should remain that of grandchild for all purposes he would have cast the second sentence in the same form as that in which he cast the first sentence and would have provided “that he should take under my will as a grandchild only.” We are of opinion, however, that this argument calls for too nice a use of words to be adopted as the true rule of construing the will of this testator. It is apparent, in our opinion, that by this clause the testator intended that- for the purposes of taking property under his will the adoption should not make a difference.

If the construction contended for by this defendant were correct, the father of this defendant (the adopted child) and the defendant himself (his child and so a grandchild of the testator) would both have taken a share as grandchildren if both had been living when the time came for the distribution of the corpus of the trust estate; the adopted son because he was in fact a grandchild, the defendant because by the adoption of his father he had become a grandchild and because this clause did not exclude him. We cannot believe that this result was what the testator intended in that event.

2. The other question presented concerns the income which accrued during the life of the last surviving child of the testator. The clause of the will which deals with the income of the trust fund is manifestly an incomplete sentence. No effect can be given to it except on the assumption that some words have been omitted and by supplying the missing words. But there is nothing from which it could be determined what the missing words to be supplied are, if there are missing words to be supplied.

The administrator of the estate of the last survivor of the life tenants contends that if the period between the words “children” *578and “And” is omitted and the fact that the word “And” begins with a capital is disregarded, the sentence becomes complete. But we are not able to reach that conclusion in case the period is omitted and the fact that “And” begins with a capital is disregarded. In that case the gift of the income is in these words: “To pay all the remainder of said income ... in equal shares to my several children . . . [naming them] for, and during the period of the natural life of each of my said children and upon the decease of any of my said children, the share, or shares of said deceased child, or children, notwithstanding such deceased child or children shall leave issue surviving, until after the decease of all my said children.” The sentence is still an incomplete one. In arguing that it is not, the learned counsel really asks us to supply the words “shall be paid in like manner to the (other) children,” and to insert the words thus supplied between the words “deceased child or children” and “notwithstanding.” There is nothing in the will which makes it certain that these are the words which were omitted. Under these circumstances they cannot be supplied. Metcalf v. Framingham Parish, 128 Mass. 370. King v. Viscoloid Co. 219 Mass. 420.

Although this incomplete sentence does not provide for the disposition of the income after the death of one or more of the life tenants, it does make plain that the distribution of the- principal is not to take place “until after the decease of all my said children.” The clause from which there are missing words must be disregarded. Item 3 of article “Fourth” is there as follows: “To pay all the remainder of said income ... in equal shares to my several children . . . for, and during the period of the natural life of each of my said children . . . until after the decease of all my said children, when I direct” that the corpus be distributed among my grandchildren then living, per capita.

We are of opinion that by the true construction of this item of the “Fourth” article the income was given to the children named as a class, and that upon the death of one the income was to be paid to the survivors, and upon the death of all but one it went to the last survivor. The provisions of item 3 are very like the provisions of the will in Meserve v. Haak, 191 Mass. 220. What was said in the opinion in that case is applicable here. See also Loring v. Coolidge, 99 Mass. 191; Wheaton v. Batcheller, 211 Mass. 223. *579It is certain that there is no intestacy. See Brown v. Wright, 168 Mass. 506.

The result is that the plaintiffs should be instructed to distribute the principal of the trust fund among the ten defendants, Mary B. Rathbone, Katherine H. Muller, Katherine B. Tread-well, Robert F. Bradford, Pauline B. Bradford, Caroline B. Jansen, Sarah B. Richardson, Agnes P. O. Smedes, Nancy Otis Winston and Baury de B. Bradford, or their assignees so far as they have made assignments of their interests; and that the income which accrued after the death of the other children and before the death of the last surviving child of the testator (Elizabeth P. Baury), should be paid to George L. Clarke, as administrator of her estate.

Decree accordingly.