167 Mass. 499 | Mass. | 1897
The decision of the Supreme Court of the United States in Blagge v. Balch, 162 U. S. 439, settled the principal questions arising under the U. S. St. of March 3, 1891, (26 U. S. Sts. at Large, 862, 908,) and established the fact that the money in the hands of the plaintiff was appropriated by the Congress of the United States, not to be held as a part of the estate of the testator, but as a gift to individuals who were selected on account of their relationship to William Gray, the original sufferer. The gift took effect at the date of the passage of the act, and the money is to be divided among those who were then his statutory next of kin.
The principal question which has been argued before us is whether the money is to be divided as if it vested in the tes
In Blagge v. Balch, Chief Justice Fuller uses these words: “ From these considerations, and by necessary construction of the language employed, it results that ‘ next of kin,’ as used in
The next of kin of William Gray among whom this money is to be divided are nineteen grandchildren, who will take per capita, and the children of four deceased grandchildren, who will take by right of representation the shares which their deceased, parents would have taken if living. Our statute of distributions, applied to such a case, requires a division of the fund in this way. Pub. Sts. c. 125, § 1, cl. 1. Balch v. Stone, 149 Mass. 39.
In Clement's estate, 160 Penn. St. 391, the next of kin of the original sufferer living at the date of the act were four grandchildren and the children of seven deceased grandchildren. In accordance with the views which we have expressed, the court divided the fund into eleven equal shares, and gave one to each of the surviving grandchildren and one to the children of each of the deceased grandchildren. This case was referred to in Blagge v. Balch, 162 U. S. 439, 465, and said to be in harmony with the views therein expressed.
Gardner v. Clarke, 20 D. C. 261, which is cited as an authority for a different method of distribution, was decided under the statutes of Rhode Island, where the distribution is pier stirpes
In cases under wills it has frequently been held that, in order to carry out the intention of the testator, heirs or next of kin are to be determined as of a date subsequent to the death of the ancestor. Proctor v. Clark, 154 Mass. 45. Peck v. Carlton, 154 Mass. 231. Wood v. Bullard, 151 Mass. 324. Fargo v. Miller, 150 Mass. 225.
The money in the hands of the plaintiff for distribution will be divided into twenty-three equal shares, of which one will be given to each of the surviving grandchildren and one to the children of each of the deceased grandchildren.
So ordered.
It seems to me that the decision of the Supreme Court of the United States is that the next of kin of the original sufferer should be ascertained as of the date of his death, and that their descendants living at the date of the enactment of the statute should take per stirpes, paying no regard to wills, assignments, bankruptcies, or creditors. The original sufferer left six children. Two died without issue. Descendants of the other four were living at the date of the enactment of the statute. The fund therefore, as I understand the decision, should be divided into four equal parts, and one fourth part should go to the descendants of each one of the four who left issue. This seems to me to be the meaning of the language used in Blagge v. Balch, 162 U. S. 439, 464.