Howland v. Howland

100 Mass. 222 | Mass. | 1868

Chapman, C. J.

The will of Daniel Howland, Jr., gives to his daughter Cynthia S. Howland certain shares of railroad stock and bridge stock, and provides: “ Should my said daughter Cynthia die before she is of age, I give and bequeath the said property given to her, or the remainder thereof, to my children and their heirs, to be equally divided between them.” It also gives to his son Charles W. certain railroad stock, and certain real estate. On the decease of his wife, it gives him the remainder of all the property which it gives to her. It then provides that “ should my son, the said Charles W., die before coming of age, I give, bequeath and devise all the property that I have given to him in this will, or the remainder thereof, to my children and their heirs, to be equally divided between them.”

The authorities cited for the plaintiffs establish the right of these legatees to have the property transferred to them for their use without restraint. Of course it will be received for them by their guardian, they being minors. Whether the limitation over will be valid, in case they die before coming of age, and leaving any part of the property, is a point that does not arise.

The testator, in the eighth clause of the will, gives to his wife, Betsey R. Howland, “ all of my personal property, not disposed of as above, after paying from the same my debts to the amount of four hundred dollars, should that amount of indebtedness be found against my estate. But should my just debts amount to more than four hundred dollars, it is my will that all above that amount should be paid equally from the whole of my estate.”

The ninth clause in the will, devises to her certain real estate during her life, and the following words are added: “ But on her decease the remainder of all the property that I give to my said wife I give and devise to my son Charles W. Howland.” It is contended that the phrase “ all the property ” includes personal as well as real estate. But we are of opinion that it was intended to apply only to the real estate. This is not very material, however, because she is entitled to take the personal property and use it without restraint, on the same ground that the minor heirs take and use what is béqueathed to them.

As it is alleged that the debts exceed the sum of four hundred do'lars, and amount to twelve hundred and eighteen dollars, the ease must be sent to a master to ascertain the amount, and the amount of legacies which have been made by the will subject to contribution for the excess, unless the parties can agree upon these .amounts. Decree for the plaintiffs.