186 Mass. 444 | Mass. | 1904
The will of Isaac D. Farnsworth late of Boston, deceased, contains this clause : “ To my nephew Edwin W. Jackson of South Deerfield five thousand dollars. To my niece Mary Jackson of South Deerfield five thousand dollars. To Elisha Atkins and Charles D. Flint in trust for Edwin W. Jackson and Mary Jackson, as aforesaid the sum of ten thousand dollars the net income to be paid them equally during their lives.” Edwin W. Jackson has deceased, and the question is whether the share of which he has received the income, goes to his legal representatives, or passes under the residuary clause
In the first codicil is a recital which shows that at the time of the execution of the original will the testator expected that there would be a residue undisposed of, and he gives this in his codicil to trustees for the benefit of Agnes Ryan. There is, therefore, no ground for a contention that our construction of the will produces an intestacy which the testator did not intend.
Our view is strengthened by the fact that later in the will the same trustees are given the sum of $10,000 for each of three persons, with a provision that the income shall be paid to each “ beneficiary during her life, . . . then the principal to her heirs at her death.” If the testator had intended that the gifts now in question should be treated in this wray, we think he would have used similar language in stating the terms of the trust under which they are held. We are therefore of opinion that each of these two legatees took only an equitable life estate in one half of the gift of $10,000. See Wainwright v. Tuckerman, 120 Mass. 232; Buffinton v. Maxam, 152 Mass. 477; Perkins v. Stearns, 163 Mass. 247; Wynn v. Bartlett, 167 Mass. 292.
We are also of opinion that they took as tenants in common and not as joint tenants. It is a general rule that when a bequest is made to several persons, of income to be divided “ equally ” among them, they take as tenants in common and
So ordered.