185 Mass. 165 | Mass. | 1904
The testatrix, Mary J. Aldrich, died May 13, 1891, leaving a will and codicil which were duly admitted to probate. Apparently Sarah Aldrich, mother of the testatrix, to whom all the rest and residue of the estate was given, did not survive her and the property was divided among a large number of legatees who are specifically named, and for whom the further provisions were made; that if any residue remained after paying all the pecuniary legacies in full, it should be converted into money, and divided among “ said legatees in proportion to the amount of their several legacies hereinbefore named.” The estate so left was of sufficient value not only to pay all these legacies in full, but to leave a large amount for distribution under the residuary clause of the will. Cushman v. Albee, 183 Mass. 108. All the estate has been distributed except the house and land in Newbury Street, which was given by the codicil to Sarah Ferris for life. She is now dead. And the question raised is, whether the proceeds to be derived from a conversion of this property into money in accordance with the provisions of the will and codicil, is to be distributed and apportioned as of the date of the death of the testatrix, or that of the life tenant.
The will and codicil are to be construed together, and form one instrument for the purpose of ascertaining her intention as to the disposition of her estate. Lyman v. Coolidge, 176 Mass. 7, 9. Bassett v. Nickerson, 184 Mass. 169.
Except so far as she gave to Sarah Ferris, who by a subsequent marriage became Sarah Ferris Devlin, the use for life of the family residence under certain conditions, the provisions of the will were not affected or modified by the codicil.
Nothing is shown in the case to take it out of the ordinary rule, that a remainder after a life estate must be held to have vested at the death of the testatrix, unless from the terms of the will it was clearly her intention that it should not vest,
Not only was a life estate given to her, but the life tenant was also made one of the legatees in the will, and is within the class among whom the residue of the entire estate is to be divided. This clause of the will is in legal effect the same as if each legatee had been again named and his or her proportionate share of the residue stated. Shaw v. Eckley, 169 Mass. 119,121.
In other words she was given a fractional interest in a remainder which was subject to the life estate given her by the codicil. But if this part of the estate was not to be divided until her death, while the life estate would not be affected, she could not be personally benefited by such distribution ; but the conditions upon which the life estate was to be enjoyed were, that she should reside in the house, keep it in good repair, pay all taxes assessed thereon, and make it her permanent home. If it was abandoned by her as a permanent home, then, as well as at her decease, final distribution was to be made of this part of the estate. Mrs. Devlin might have chosen not to occupy the house, the life interest in which is stated to be given to her in addition to the provision made for her benefit in the will; or after occupancy she might choose to make her home elsewhere. In either event, distribution would immediately follow.
There is nothing inconsistent or repugnant in the gift of a life estate with a remainder to a life tenant, even though such remainder can never come into the possession of the remainderman. Chesman v. Cummings, 142 Mass. 65, 70. Rotch v. Rotch, 173 Mass. 125, 130.
And this fact is not enough to change the time when the remainder must be held to have become vested. No words of contingency are used, as if she had said the distribution should be among the legatees then surviving, or such as shall be alive at the death of the life tenant; and no intention appears in her scheme for the distribution of her_ estate as a whole, to make other than a present bequest to the legatees named. Neither does the language used create two classes of legatees: those
The codicil provides, “and at her decease . . . said house . . . shall fall into the rest and residue of my estate and be disposed of as is by said will provided for the disposal of said rest and residue.”
The words “at her decease” are not susceptible of any stronger meaning than if she had said, that this part of her estate should then become the property of the legatees for the purpose of possession and enjoyment, and to which they already had the legal title.
These words do not state a contingency on which their interest was to vest, but merely designate the time when the class called “ said legatees ” would be entitled to possession of the respective portion of each in the proceeds of the sale.
The death of Sarah Ferris Devlin was the time fixed when this part of the estate of the testatrix was to be converted into money, and distributed to those whose right to receive any portion of it had already vested at the date of the death of the testatrix. White v. Curtis, 12 Gray, 54. Abbott v. Bradstreet, 3 Allen, 587. Gibbens v. Gibbens, 140 Mass. 102. Loring v. Carnes, 148 Mass. 223. Pollock v. Farnham, 156 Mass. 388. Harding v. Harding, 174 Mass. 268.
When the petitioner has converted this house into money according to the terms of the will of Mary J. Aldrich, the net proceeds are to be distributed among the legatees named therein as of the date of her death, and in the proportion that the pecuniary legacy given to each bears to the whole sum of the residue to be divided. The executor or administrator of any deceased legatee named in the will to take his or her portion; and Edward Devlin, trustee under the will of Sarah Ferris Devlin, is to receive the share given to her.
Decree accordingly.
