Hall v. Hall, 140 Mass. 267

Hall v. Hall

140 Mass. 267 | Mass. | 1885

Holmes, J.

The trustees under the will of Thomas Bartlett ask the instruction of the court to whom, and in what proportions, they shall convey, in pursuance of the following clause:

“ In- trust lastly, at the decease of the said surviving daughter, to grant, surrender, and convey the estates aforesaid, with all accumulation or income then unexpended, to the issue or children of my said two daughters, Maria Hall and Ann Dwight, who may then be living, to be equally divided among all such issue or children share and share alike, to them and their respective heirs and assigns forever in fee simple.”

As a first step toward the interpretation of this language, it is proper to state that, in the opinion of a majority of the court, *270“ issue or children ” cannot be read as meaning either “ issue or in other words children,” or “ child or children ; ” but that the words “ issue or ” must be taken to have been intended to add something to the substantial meaning of the clause, and to enlarge the scope of the limitation. See Pub. Sts. c. 3, § 3, cl. 11. If there had been no children, but only grandchildren of the testator’s daughters, it would have been hard to persuade any court that "there was an intestacy, so far as this clause was concerned; yet that would be the result of the interpretations proposed. And, as to the latter of the two (“ child or children ”), we may add that the immediately preceding words, “ equally to be divided among all such ” (issue or children), imply that “ issue ” may embrace more than one person.

If, then, the word “ issue ” enlarges the scope of the limitation, the question arises whether we can avoid the conclusion that all issue, of whatever degree, are to take equal shares, — a conclusion repudiated by all the arguments addressed to us. See Cancellor v. Cancellor, 2 Dr. & Sm. 194. We agree that the greater reasonableness of a different disposition, or a consideration of what it is likely, on general principles, that a testator would have wished, cannot be allowed to change the interpretation of the words used, if the meaning is plain apart from such considerations. But we have reached the opinion, although not without hesitation and doubt, that a meaning more likely to meet what the testator would have desired than either of those above suggested can be extracted from the words themselves.

We take the disjunctive “ or,” in the phrase “ issue or children,” to signify that issue take only in the alternative that a child, the parent of such issue, is not living. And if issue more remote than children are only to take in place of children, their respective parents, and not along with them in equal shares, then, in the absence of anything further, such issue will naturally take the share of the parent that they replace. We should at least expect to find a substitution, and not that the death of a child of one of the testator’s daughters, leaving children, should diminish the share of other children, possibly of the other daughter. And this result is reached, if we regard the children of daughters as the units for the equal division “ share and share alike,” as we well may in view of our opinion, already stated, *271that issue only come in by way of substitution for children. It is true that the property is to be equally divided among “ all such issue,” &c. But this does not necessarily mean that each of such issue shall have an equal share with every other, or with a child. It is satisfied if all such issue share in a division which is equal as between the living children and the issue of deceased children taking per stirpes. Our opinion derives some support from Horsepool v. Watson, 3 Ves. 383. Perhaps the turn of the language may be explained by noticing that, while either of the testator’s daughters was living, the collective children of a deceased daughter did not take an equal share in the income with the surviving daughter, and that it was intended to mark the change in the proportions when the last daughter died.

It is not disputed that, if the principle of representation applies, it applies equally when the issue are of a remoter generation than great-grandchildren of the testator.

Decree accordingly.