200 Mass. 310 | Mass. | 1908
The petitioner holds a trust fund created under the will of Elizabeth Howes. She died in 1859, leaving two daughters and a son, all of whom have now died without issue. The last survivor of these children of Elizabeth Howes was Susan B. Cabot, who died in 1907.
Mrs. Howes by her will gave to her son one fourth of all the residue of her estate. The other three fourths she gave to trustees, with provisions that the income should be paid primarily to her daughters, but, in certain events, in part to her son and in part to the descendants, if any, of her daughters, until the decease of the last survivor of her daughters. The will then provided, in the fifth paragraph of the second article, that the trustees should “ on the decease of the last survivor of my said daughters . . . convey, assign, deliver and distribute the whole remaining trust property to the then surviving de
As was said by this court in Whall v. Converse, 146 Mass. 345, 348, “ The general rule is settled, that, in case of an ultimate limitation like that of the fund in question to the testator’s heirs at law, the persons to take are those who answer the description at the time of the testator’s death. Dove v. Torr, 128 Mass. 38, 40. Minot v. Tappan, 122 Mass. 535, 537. Abbott v. Bradstreet, 3 Allen, 587. The reasons for this rule are, that the words cannot be used properly to designate anybody else; that such a mode of ascertaining the beneficiary implies that the testator has exhausted his specific wishes by the previous limitations, and is content thereafter to let the law take its course; and, perhaps, that the law leans toward a construction which vests the interest at the earliest moment.” The same rule often since has been re-stated by this court. Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70. Gray v. Whittemore, 192 Mass. 367, 380. Holmes v. Holmes, 194 Mass. 552, 557. Blodgett v. Stowell, 189 Mass. 142, 143. International Trust Co. v. Williams, 183 Mass. 173. Pierce v. Knight, 182 Mass. 72. Rotch v. Rotch, 173 Mass. 125. It is needless to refer to the many other cases that might be cited to the proposition.
The fact that her heirs at her death were her children, that an absolute bequest was made to her son, and that life estates were given to her daughters, does not indicate an intention that these same children should not finally take as her heirs after the termination of the special limitations which she chose to make. Childs v. Russell, 11 Met. 16. Abbott v. Bradstreet, 3 Allen, 587. Cushman v. Arnold, 185 Mass. 165. Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70.
Nor can we say that this testatrix did not intend that her children should not have power to dispose of their respective interests in remainder, because her husband by his will had expressly given such a power to the survivor of his children, and she did not make a similar provision, and it may be inferred that she was acquainted with the contents of her husband’s will.
The careful provision that the share of the income of the trust fund which was to be paid to her daughters or to their female descendants should be paid to them or for their benefit independently of their husbands does not warrant the inference
We have carefully considered all the suggestions made in the elaborate arguments, and have examined all the cases to which we have been referred; and we find nothing in the will of the testatrix which discloses any intent to benefit her collateral relatives. We are of opinion that having, as in Rotch v. Rotch, 173 Mass. 125, 133, made provision for each of her daughters during all her life and for her issue if she should leave any, and having secured to her son what she regarded as an adequate portion for him, she was content, if her children should leave no issue, to let her estate go as the law might direct.
Accordingly the petitioner should be instructed that it is his duty to pay the trust fund to the administrators with the will annexed of the estate of Susan B. Cabot.
Decree accordingly.