Goddard v. Amory

147 Mass. 71 | Mass. | 1888

Mortor, 0. J.

By her will the testatrix gave ten thousand dollars to George A. Goddard, “ in trust, to keep the same invested, and to pay so much of the net income therefrom during the lives of my nephews and nieces living at my decease and the survivor of them, to those or the issue of those that are most needy, at such times as he thinks best, he keeping invested any income not divided by him, and upon the death of the survivor to divide the principal and any accrued income amongst the descendants of my nephews and nieces who in his judgment may be most in need of the same.”

At the date of the will and at the time of her death, the testatrix had two nephews, one of whom only was alleged to be married, and two brothers of the ages respectively of sixty-six and sixty years. Ellen D. Amory, the widow of John L. Amory, a deceased nephew -of the testatrix, was then and is now living. The only question presented in this case is whether the wife of the living nephew and the widow of the deceased nephew are included within the terms “ my nephews and nieces living át my decease.” According to the modern usage, the word “niece ” or “ nieces ” means the daughter or daughters of a brother or sister. It does not by its accepted meaning include the wives or widows of nephews. The bequest to “ my nephews and nieces ” should be construed according to its legal signification, unless it appears from the will that the testatrix intended to use it with a more extended meaning. It is argued that, as she left no nieces by blood, the word “ nieces ” cannot be satisfied unless she meant to include the wives of nephews.

But we think, looking at the whole will, that this was not her intention. She had two brothers, and it was possible that one of them might have a daughter or daughters born to him, in which event the use of the word “ nieces ” was necessary in order to insure an equality among her blood relations in equal degree. The will throughout shows a general intention to dispose of the bulk of her property to relatives by blood. In the clause we are considering, she intends to make provision for two generations, her nephews and nieces and their descendants. Upon the death of the survivor of the nephews and nieces, the principal of the fund is to be divided “ amongst the descendants of my nephews and nieces.” According to the construction claimed by the wives of the nephews, if a nephew dies or is divorced and his wife marries again and has children, the principal of the fund might go to such children, to the exclusion of the children of the nephews of the testatrix. We cannot doubt that this would defeat her purpose and intention. She intended to provide for the descendants of her nephews and nieces who were her relations by blood; and the words “and nieces” in this connection have some tendency to show that she had in her mind, not her nephews’ wives, but a possible class of nieces by blood. We cannot believe that in this clause she intended to provide for the descendants of a widow or divorced wife of a nephew, who were strangers to her in blood and affection.

Taking the whole will together, we are of opinion that she intended to use the words “ my nephews and nieces living at my decease” in their primary and natural sense, and therefore that the trustee has no right to pay any portion of the income of the fund to the wives or widow of the testatrix’s nephews.

Decree accordingly.