228 Mass. 537 | Mass. | 1917
The testatrix by the twelfth or residuary clause of her will created a trust the net income of which was to be paid to Hettie H. Robinson during her life, and upon her decease the trustees and their successors in office were directed and ordered to pay over, distribute and divide the whole of the residuary estate “to and among all the lineal descendants then living of my grandfather, Gideon Howland, and if all the lineal descendants aforesaid then living are in the same degree of kindred to the said Gideon Howland, they shall share the said Estate equally and shall be paid in equal shares; otherwise they shall take according to the right of representation, and the said Trustees shall pay them respectively such portions as shall according to the right of representation belong to them.” The equitable life estate having terminated, the trustees are required to make distribution, and the questions for decision are who are the persons entitled to participate, and, when they are ascertained, in what proportions are theyto share the fund. Gideon Howland died on May 23, 1823, and none of his thirteen children were living at the date of the will. The words “lineal descendants” however embrace all those even to the remotest generation who by consanguinity trace their lineage to him. Houghton v. Kendall, 7 Allen, 72, 76. Swasey v. Jaques, 144 Mass. 135, 138. Leonard v. Haworth, 171 Mass. 496. Morse v. Hayden, 82 Maine, 227, 230. Levy v. M’Cartee, 6 Pet. 102, 112. Ralph v. Carrick, 11 Ch. D. 873, 883. It appears that eleven of the children had issue, and if his forty-five grandchildren had all been living when the life estate fell in, they would have shared the residue in aliquot parts. Knapp v. Windsor, 6 Cush. 156, 162. But, even if only three survived, the survivors with the issue of the deceased forty-two grandchildren fully answer the designation. It is in substance contended by the appellants, that, as the grandchildren and great-grandchildren are not in the same degree of kindred, and hence cannot take in equal shares, and as the line of descent begins with Gideon’s children who had issue, and as all the lineal descendants living when the time for their ascertainment culminated were the issue of those children, the residue first should be divided into eleven parts instead of into forty-five parts, and distribution decreed accordingly. Allen v. Boardman, 193 Mass. 284, 287.
This construction however reads out of the will “if all the lineal
Ordered accordingly.