141 Mass. 323 | Mass. | 1886
The testator gave to his executors for the use of his grandson, John W., $2000, the income of which was to be paid to him during the life of his father, James, and then the principal was to be paid to John W. or his heirs at law. The testator also gave to his executors $3000, to be invested in their own names, and, at such times as they saw fit, they were to pay the interest thereof to James, the son of the testator. The will provided that, if any creditor of James should attempt to obtain any portion of this sum, the executors should not be held to owe the same or any portion thereof to James; but in such case all of the interest or income then due was to be paid to John W., or, if he should not be living, the executors were to retain it for their own use. On the death of James, the $3000 was to be paid to said John W. or his heirs ; and, if John W. should die before his father, James, the $2000 was to be held during the life of James, and then “ be paid in the same way to the heirs at law of the said John W. Coggeshall.”
John W. Coggeshall died, leaving no widow or issue, and, as next of kin, his father, James, who subsequently died testate.
By the provisions of the will, the principal of both sums was to be paid to the heirs at law of John W. upon the death of his father, James. The heirs of John W. were not to take under the will by inheritance, but as persons designated by the testator as such heirs, found to be in existence at the time of James’s death. The remainder over to the heirs was contingent until the prescribed event should happen. The bequest was to those who should be his heirs upon the happening of the contingency, and not to those who were the heirs of John W. at the time of his decease. Sears v. Russell, 8 Gray, 86.
The evident intention of the testator was to exclude James from participating in any portion of the principal of this fund. To carry out this intention, he provided that the fund should not vest in the heirs of John W. until the death of James, thereby excluding him. The period of distribution was postponed to the
Construing the will according to the clear intention of the testator, a majority of the court are of opinion that the fund did not vest in James upon the death of his son; that he was not one of the legal heirs of John W. under the will; and that the fund should be distributed among those who were the heirs at law of John W. upon the death of James.
Decree accordingly.
