Dodd v. Winship
11 N.E. 588
Mass.
1887
Check Treatment
Morton, C. J.

The question whether the appellants are entitled to charge in their account against the children of Dwight B. Hooper the sum of $872, received by said Hooper in his lifetime, and interest thereon, was adjudicated in the case of Dodd v. Winship, 133 Mass. 359. In that case it appeared that the sum received by said Hooper was a part of the income of the trust fund. The court dealt with the case before it, and decided that, being a part of the income, it belonged to Mrs. Hooper, and could not be charged against the children in the probate accounts with them. The trustees have filed another account, in which they credit themselves with the same sum and interest, alleging that it was a part of the principal of the trust fund.

The first question is whether the prior adjudication is a conclusive bar to their right to do this. Under our system of probate proceedings, great latitude is allowed in reopening and correcting errors in the accounts of executors, guardians, and trustees.

The statute provides that, “ upon the settlement of an account, all former accounts of the same accountant may be so far opened as to correct a mistake or error therein; except that a matter in dispute, which has been previously heard and determined by the court, shall not without leave of the court be again brought in question by any of the parties to such dispute.” Pub. Sts. c. 144, § 9.

It seems therefore, that if the appellants, through inadvertence, and without any fault on their part, erred in admitting that the amount appropriated by Dwight B. Hooper was a part of the income, the Probate Court, or, upon appeal, this court, could grant them leave to reopen the account and correct this *464error, if it was material. Blake v. Pegram, 101 Mass. 592; and 109 Mass. 541.

But it is not necessary to investigate or consider whether the alleged mistake in the first account was an excusable one, because, it is not material. Whether the amount appropriated by Hooper was income or principal, the result is the same.

By the will of John Hooper, he gave the residue of his property to the appellants as trustees, to pay the income to his widow during her life, and “ at her decease to pay, convey, and assign the trust' property to and among my children, their heirs, personal representatives, and assigns, in equal proportions, the issue of any deceased child to stand in their parent’s stead and receive their parent’s share.” Under this devise, the children of the testator took interests which vested at his death. Gibbens v. Gibbens, 140 Mass. 102. The material question is as to the extent and quality of such interests.

The testator’s clear intention was to postpone the possession and enjoyment of the estate by his children until the death of the widow, so that Dwight B. Hooper had no right of possession or enjoyment of any part of his share during his mother’s life. It is not a reasonable construction of the clause we are considering, that the words “ the issue of any deceased child ” refer only to the issue of any child who died before the testator. He is speaking of the time of the decease of the widow, the time of the final distribution of the property, and the meaning is the same as if he had sajd “ at her decease the trustees are to pay and convey the property to and among my children in equal proportions; but if any child be then deceased, leaving issue, such issue are to take the share their parent would have taken if then living.”

It was the intention of the testator, not merely to postpone the enjoyment to the period of distribution, but to create a condition subsequent, that if any child • died before the widow, leaving issue, such issue should take under the will as substituted legatees. The cáse falls within that class of cases where it is held that a devise creates a vested interest determinable by some future condition or contingency. Blanchard v. Blanchard, 1 Allen, 223, and cases cited. McArthur v. Scott, 113 U. S. 340. Dwight B. Hooper took a vested estate liable to be devested *465and defeated if he died before his mother, leaving issue. He could assign it, but his assignee would take the estate subject to the same contingency. Putnam v. Story, 132 Mass. 205. Dunn v. Sargent, 101 Mass. 336. Neither he nor the trustees could enlarge his interest, or defeat the interest of his issue. In the contingency which has happened, they are entitled under the will to that share of the principal of the fund which would have come to their father, if he had survived his mother. If the trustees purposely or negligently allowed Dwight B. Hooper to appropriate a part of this fund, it was a breach of trust, and they cannot charge it in their account against his children, thus defeating their rights and the intentions of the testator. Cowdin v. Perry, 11 Pick. 503. Peeree affirmed.