229 Mass. 527 | Mass. | 1918
Prentiss Hobbs died on August 28,1858, leaving an estate worth about $125,000. His wife predeceased him; and he was survived by his four children, Abby R. (Manning), Lydia, Joshua B. F., and Elizabeth L., born respectively in the years 1831, 1836, 1837 and 1839. A grandchild, Prentiss Hobbs Manning, also survived him; and Mrs. Manning was the only one of the testator’s children then married.
The will of Mr. Hobbs was executed ten days before his death. He bequeathed his estate, subject to the payment of his debts, to trustees, provided an annuity of $50 for his mother-in-law, Mrs. Lincoln; and directed the trustees to pay out of the income $1,000 a year to each of his daughters, and $600 a year to his son, during their several lives. He then directed as follows:
“6th. On the decease of either of my said four children, leaving issue or descendants of such issue, then In Trust, to pay to such issue or descendants, annually, in quarterly instalments, the sum hereinbefore given to the parent of such issue or descendants — until the decease of the last Survivor of my said four children — And 7th. Upon the decease of the said last Survivor then In Trust, to convey and deliver to all my then surviving grandchildren and' their issue, all my said estate and property, with the increase thereof in equal shares — in fee simple and full property, forever—”
Mrs. Lincoln has died. The last survivor of the testator’s children, Elizabeth L. (Howe), died on February 27, 1916; and
At the threshold, it is apparent that the interpretation proposed by the great-grandchildren would lead to unreasonable and inequitable results. By allowing the grandchildren and great-grandchildren to take simultaneously it admits children to compete with their living parents, — a construction to be avoided unless such plainly was the testator’s intention. Dick v. Lacy, 8 Beav. 214, 221. Audsley v. Horn, 29 L. J. Ch. (N. S.) 201. Further, although on the death of either of the testator’s children during the fifty-seven years preceding the death of the last survivor, Mrs. Howe, the “issue or descendants” of such deceased child would succeed to the parent’s share of the income under article sixth of the will, yet on the death of Mrs. Howe the issue of any deceased grandchild would not only be excluded from all share in the principal, but the income which they had been receiving would be cut off. The proposed construction also would involve some surprising discriminations in individuals and families. For instance, as only the issue alive at the death of the last life tenant can take, children born to the grandchildren after the period of distribution would be excluded, while their brothers and sisters born before that period would take directly under the will. Again,
An intention so capricious and inequitable should not be attributed to a testator, who admittedly was “a kind father,” and whose “relations with the children were affectionate,” unless it is plainly manifested by the language of his will. It is not decisive that the strict grammatical construction of a separate clause would warrant the conclusion urged on behalf of the great-grandchildren. As was said in Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, 98, “The general principles which apply to the construction of a clause similar to the one in question are well settled. While care must be taken that courts do not undertake to make wills for testators, and while their meaning is not to be ascertained by mere conjecture as to what they may have intended, the true meaning of words used is to be arrived at by considering them in their relation not only to the clause immediately in question, but to the whole will. Their more grammatical or ordinary sense is not to be adhered to, if it would be repugnant to or inconsistent with the remainder of the instrument.” And when an examination of the will as a whole makes clear the general intention of the testator, that must control the interpretation of a clause which is of ambiguous or uncertain meaning. Tibbetts v. Tomkinson, 217 Mass. 244. Miller v. Idaho Industrial Institute, 222 Mass. 188.
The language in controversy, providing for the distribution of the trust estate “to all my then surviving grandchildren and their issue,” is open to different constructions. As stated in 28 Hals-bury’s Laws of England, § 1436: “In a gift to a donee ‘and his children’ or to á donee ‘and his issue’ the last words in each case are capable of being used as words of limitation, or words of description of persons to take either concurrently with or in succession to the named donee, or in substitution for him.” There is ample authority for construing “their issue” as words of limitation, whereby the surviving grandchildren would take estates tail in the real
In determining which of these possible interpretations should be adopted, it is important to discover what was the general intent of the testator, as shown by an examination of the entire will, in the light of the circumstances existing when he made it. His children were then aged substantially twenty-seven, twenty-two, twenty-one and nineteen years, and only one grandchild was living. Aside from an annuity of $50 to Mrs. Lincoln, his entire estate is given to his children and their issue. His children share in the income only, but with substantial equality, the daughters receiving annually $1,000 each and the son $600. Contemplating the probability of grandchildren, which in time was realized, he provided for them in the event of the parent’s death before the time for distributing the principal, and in doing so maintained his plan of substantial equality by giving to such grandchildren the share of the income that their deceased parent had enjoyed.
This dominant purpose of the testator to treat his children (or their issue) with substantial equality in distributing the income, strongly indicates a purpose to distribute the principal with like substantial equality among the living grandchildren and the issue of those who should die before the time of distribution — such issue taking, as alternative and original donees, the share their ancestor would have taken had he survived the life tenant. Such a construction of article seven not only is in conformity with the rest of the will, but it avoids the unreasonable and unfair results that must follow from either of the other interpretations suggested, — results which plainly would not effectuate the intention of the testator. It merely expresses what seems to us
Decree of Probate Court affirmed.