209 Mass. 350 | Mass. | 1911
The testatrix, a spinster, by her will gave the residue of her estate in trust to pay the income to her brothers for life and the survivor with remainder to the issue of one of them. Both have died without issue. The clause of her will operative in this contingency is “ Upon the death of both my said brothers, and the said J. Brooks leaving no issue then living, I give, devise and bequeath all the then remaining trust property and
The last surviving brother died in 1910. The cousin, Herbert H. Eustis, died in February, 1903, leaving no issue, and all the other cousins named were alive at the termination of the life estates. The uncle, Thomas B. Hall, died in March, 1903, leaving two daughters who are still living, and who were of mature years when the will was executed. The question is as to the disposition of the share, to which the cousin, Herbert H. Eustis, would have been entitled, had he lived until after the death of the brothers. The conflicting contentions are on the one side that it is to be divided into fourths among the surviving cousins named in the will, and on the other side that it is to be divided into fifths, and one fifth given to each of such cousins and the other fifth to the two daughters of the deceased uncle, Thomas B. Hall. The controversy relates wholly to the point of time when the gift over on the decease of a cousin takes effect, whether at the death of the cousin or at the termination of the life estates.
It is urged in favor of the division into fifths that upon the other contention circumstances are conceivable which might have resulted in partial intestacy (though this is a remote contingency in view of the number and age of the cousins), and that it is a general rule that the law favors the vesting of interests at the earliest moment possible. It is also said that the daughters of the deceased uncle bore the same degree of relationship to the testatrix as the other residuary beneficiaries
The words “ then living ” applied to the issue of the brother, J. Brooks, in the, first sentence of the clause quoted, must refer to the termination of the life estate, as do also the words “ then remaining ” in the same sentence. The words “ previous decease ” in the second sentence mean a decease occurring previous to the termination of the life estate. About these there can be no dispute. Thus, three times by three different phrases reference is made to a single point of time, which is the period of distribution. It is natural that the words “ then living ” which follow immediately touching the issue’ of a deceased cousin or uncle should refer to the same point of time rather than to a different one. Words of the same general significance are commonly used in the same rather than in a varying sense in the same instrument. Moreover, the words are tautological and have no force unless they refer to the period of distribution. One cannot die leaving issue unless such issue is then living. A construction which gives effect to all the language used is preferred to one which treats some as superfluous. The final sentence quoted provides for the contingency of the decease of one or more of the beneficiaries named without issue. In this event she gives the share to the survivors or the whole to the survivor. The whole of the residuum could hardly go to one survivor if the share of each as they severally deceased should vest from time to time in all the survivors. This language bears a slight indication that the words “ survivors ” and “ survivor” refer to the period of distribution, and not to that of each decease. Then, too, there is an omission in this sentence of the provision found in the preceding one that the issue shall take by right of representation. This is a further circumstance looking to the same result. There are also no words of present gift to the survivors or survivor, which has been regarded some
A decree should be entered directing the trustee to divide the share which would have fallen to Herbert H. Eustis equally between Joseph B. Hall, Maria H. Hall, Susan B. Horton and George D. Eustis.
So ordered.