Lombard v. Willis

| Mass. | May 4, 1888

Holmes, J.

The eighth clause of the will, after giving the income of the residue to James P. Willis for life, proceeds, “ And at his decease I give and devise said estate to the children of said James P. Willis, to be equally divided between them.” These words, taken by themselves, include all the children living at the testator’s death. The word “ children,” by itself, means all the children, as much as if they had been named. Winslow v. Goodwin, 7 Met. 363, 375. Barton v. Bigelow, 4 Gray, 353, 355. The only words which could raise a doubt whether only such children as should survive James P. Willis were meant, on the ground that the gift to them did not take effect until his death, are “ at his decease.” But these words are construed to refer to the time of payment or possession, and do not postpone the moment when the gift shall operate. So that the construction of the clause is .settled. Shattuck v. Stedman, 2 Pick. 468. Childs v. Russell, 11 Met. 16, 23. Wight v. Shaw, 5 Cush. 56, 60. Fay v. Sylvester, 2 Gray, 171, 174. Bowditch v. Andrew, 8 Allen, 339, 342. Pike v. Stephenson, 99 Mass. 188" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/pike-v-stephenson-6415318?utm_source=webapp" opinion_id="6415318">99 Mass. 188, 190.

It is argued that we may look at the whole will in order to construe any particular part, and that, because another devise in the second clause (afterwards revoked) is limited to the children of James P. Willis who may be living at their father’s decease, we should construe the gift in the eighth clause as limited to the same persons. The argument drawn from the second clause cuts both ways. It may be answered, with about equal force, that the omission in the eighth clause of the words “ who may be then living,” must be presumed to have been made un-' derstandingly, and shows a different intent from that expressed in the second. Pike v. Stephenson, ubi supra. Possibly, in truth, the testator did not think out the effect of his dispositions very carefully, or have the difference between the two clauses very clearly in mind. But this is simply speculation, and the only safe course is to confine ourselves to the words used in the particular limitation, when those words have a plain meaning. See Giles v. Melsom, L. R. 6 H. L. 24, 31.

Decree affirmed.