204 Mass. 291 | Mass. | 1910
John Federhen, senior, died on July 30, 1898, leaving a will dated December 16, 1895, which was duly admitted to probate. At the time of the making of the will the testator had five children, all of whom were married and had children except the son Henry. The will left all of the testator’s real estate to his son Herbert, in trust, for the term of ten years, the income remaining after the payment of charges and expenses to be divided during said term in certain proportions amongst the five children. Then follows the clause which has led to the bringing of this bill, namely: “At the expiration of said trust at the end of said ten years, I give and devise one undivided fifth part thereof in fee simple to each of my following four children, John, Herbert, Augusta and Frances, and I give and devise the other undivided fifth to my son Henry for the term of his life, and at his death to be equally divided among my other four children, the issue of any deceased child to take what would have been its parent’s share if living.” The son John Federhen 3d died August 28, 1907, one year before the expiration of the ten years, leaving a will that was duly admitted to probate, by which he undertook to dispose of all the property that would come to him under the will of his father “at the termination of the trust therein.”
The question before us relates to the construction to be
It is plain that the devise was to the children as tenants in common, and not to them as joint tenants or as a class, (Frost v. Courtis, 167 Mass. 251, Stanwood v. Stanwood, 179 Mass. 223,) and it seems to us that the words as to the taking by issue quoted above refer to what immediately precedes them which is the devise to Henry and not to the devise to the other four children.
In the first place the devise is to each of the four children by name in fee simple, and, so far as appears, there was nothing in the circumstances of the testator or in his relations to the children thus named or in their circumstances or situation or in other provisions in the will to furnish a reason for cutting down the absolute character of the gift thus made. An absolute gift will not be defeated by an equivocal expression of a contrary tendency. Williams v. Bradley, 3 Allen, 270.
In the next place the clause, as the repetition of the words “give and devise” tends to show, naturally divides itself into two parts, each dealing with distinct though related matters;— the first with the devise to the four children and the other with the devise to Henry. It is the fifth given to Henry for his life which the testator directs to be divided at Henry’s
Lastly, as already observed, the fifth that was given to Henry was given to him for his life only. This left a remainder to be disposed of in his case which was not so in regard to the devise to either one of the other four children. In disposing amongst the other four children of the remainder thus created, the testator may well have had in mind the contingency that would arise if one of them should decease before Henry and have provided for it, as we think that he did, without at all affecting or intending to affect the absolute character of the devise already made to the other four children.
The result is that the income which has accumulated in the plaintiff’s hands on account of the share of John Federhen, 3d, in his father’s estate is to go and be disposed of according to the will of said John Federhen, 3d.
Decree accordingly.