278 Mass. 393 | Mass. | 1932
This is a bill brought by the trustee under the will of Wilson J. Dodge for instructions as to the proper distribution of the estate given under the sixth clause of his will, which is in the following terms: “Sixth: I give and bequeath all the use interest and income of all the rest residue and remainder of my estate and property real and personal not hereinbefore disposed of to my beloved wife Abbie F. Dodge so long as she lives, and upon her decease then I give and direct all such use income and interest to, and to be paid over to my said sisters and brother then living during their lives sharing equally and alike therein; but upon the death of either or any of my said sisters or brother the share of such interest and income which would have gone and been paid to such deceased brother or sisters shall not go to the survivors of them, but shall go to and be divided equally between the children of my sister Sarah Adelaide Kidder and upon the death of all my said sisters and my said brother I give and devise all said estate and property on which income has been received by them or either of them to the children then living of my said sister Sarah Adelaide Kidder sharing
When the will was executed in 1881 three sisters and a brother of the testator were living. At the time of his death in 1899 one of these sisters, Mrs. Kidder, had died leaving three children, Mabel A. Kidder, whose married name was Selden, James Harry Kidder, and Marion E. Kidder, whose married name is McGregor, all of whom, according to allegations in an amended petition, were born before the date of the will. On June 14, 1906, the last survivor of the testator’s sisters and brother died, and at this time all three children of Mrs. Kidder were living. Abbie F. Dodge, the widow of the testator, to whom the first life estate was given, died February 13, 1931. In the interval between June 14, 1906, and February 13, 1931, two of Mrs. Kidder’s children died. James Harry Kidder died testate February 5, 1926, the respondent, Old Colony Trust Company, being executor of his will; and Mabel K. Selden died March 1, 1929, testate, and the respondent, James K. Selden, became executor of her will. Marion K. McGregor is the only child of Mrs. Kidder who survived the testator’s widow. By the decree of the Probate Court the trustee was ordered to distribute the trust estate and accumulations thereon, after payment of proper charges and expenses and any succession tax thereon, to the respondent, Marion K. McGregor. From this decree the executors to whom reference has been made appealed. The appellants contend that the three children of Mrs. Kidder had vested interests in the trust estate and the executor of each child is entitled to share equally with Mrs. McGregor in the distribution of the trust property.
The question to be decided is primarily one of testamentary intention. The expression in the sixth clause of
To adopt the contention made in behalf of Mrs. McGregor that the children of Mrs. Kidder who are to take are to be determined at the death of the widow would require us to read into the will clauses which are not there and which are not required to carry out the testator’s apparent purpose. We are of opinion that the intention of the testator that all the children of Mrs. Kidder who might be alive upon the death of all the testator’s sisters and brother should share equally in the property is too clearly expressed to be overcome by the argument that the scheme of the will shows that only those should take who were alive at the time of distribution.
In our opinion the estate became vested in the three children of Mrs. Kidder living on June 14, 1906, when the last survivor of the testator’s sisters and brother died.
The decree is to be modified by striking out the words “to the respondent Marion E. Kidder McGregor” and inserting in their place the words “to the respondents, Marion Kidder McGregor, James K. Selden, executor of the will of Mabel K. Selden, and the Old Colony Trust Company, executor of the will of James Harry Kidder, to be divided equally among them”; and as so modified it is affirmed.
Ordered accordingly.