Frost v. Courtis

167 Mass. 251 | Mass. | 1897

Morton, J.

The question in this case is, whether the persons named as legatees in the second clause of the will took as a class, in which event the property in suit would go to the survivor or survivors on the death of one or more members of it before the testator, or whether they took as tenants in common, in which case the share or shares of those so dying would lapse. The respondents contend that they took as a class. The general rule is, that, when real property is given, as it was here, to several persons by name to be equally divided amongst them, they take as tenants in common, and not as joint tenants or as a class. Emerson v. Cutler, 14 Pick. 108. Jackson v. Roberts, 14 Gray, 546. Workman v. Workman, 2 Allen, 472. Claflin v. Tilton, 141 Mass. 343. Wood v. Seaver, 158 Mass. 411. Horton v. Earle, 162 Mass. 448. 2 Jarm. Wills, (4th Am. ed.) 162 et seq.

This rule yields to a different construction when it plainly appears from the will that it was the intention of the testator that the survivors should take the whole. Swallow v. Swallow, 166 Mass. 241, and cases cited. The mere fact, however, that the testator gives to some and not to others of those who are related to him, does not show that he gives to them as a class, or that the doctrine of survivorship is to be applied. Sohier v. Inches, 12 Gray, 385.

In the present case the testator went a little further, and named those to whom he did not give anything, and explained why he did not give them anything; but we do not think that that is sufficient to show that he gave to his second wife and her children as a class, or that he intended that, if one of them died before he did,'the survivors should take the whole.

It is probable that that contingency did not occur to him. We may conjecture that if it had he would have provided for it in a manner altogether favorable to his second wife and her children. But that is not enough to justify us in departing from a well settled rule of construction. Very likely his object in naming his grandchildren by the son of his first wife, and explaining why he did not give them anything, was to show that he bad not forgotten them; and it would be a forced construction to infer from that fact that he intended to constitute one class of them, and another class of his second wife and her children. We think, therefore, that, in accordance with the report, the verdict should be set aside, and the case should stand for trial on the issue whether the respondent Jane Courtis has acquired a title by prescription.

So ordered.