203 Mass. 376 | Mass. | 1909
The question in this case is whether Eliza Smith at her death was entitled under Mr. Whiting Street’s will to any portion of the income in the hands of the trustees, and, if so, whether such portion passed to her executor or to her heir at law. The provisions of the will under which the question arises are in the sixth item, the residuary clause, and are, so far as material, as follows: “ 2d. The said Trustees shall hold, manage, and improve the remaining two-thirds (or six-ninths) of the aforesaid residue of my estate in one fund for the use and benefit equally of my three nieces, the daughters of my brother Alpheus Street, to wit, Eliza Smith the widow of Albigence Smith, Polly Ann Houston, the wife of Robert A. Houston, and Harriet Ada-line Street, single woman; and they shall annually apportion, divide equally and pay over to them respectively during their respective lives, the net income of said fund, to each two-ninths of the income of the aforesaid six-ninths of the said residue of my estate. . . . And upon the occurrence of the death of either of my said nieces, the said trustees shall annually pay over to her heirs at law the income of the two-ninths part of said residue ; and when Whiting Bradley Street, Mrs. Nancy Perkins, Eliza Smith, Polly Ann Houston, and Harriet Adaline Street shall have all deceased, the said Trustees shall pay over to the heirs at law of each niece, two-ninths part of said residue, the use which for her life is given to her by this will, together with all the unexpended income thereof, which shall remain at the time of her death.”
By the preceding clause in the same item the trustees were directed to hold “one full and fair third, or (three-ninths parts) ” of the residue for the use and benefit of Whiting Bradley Street, the grand-nephew of the testator, and upon his death they were to pay to Mrs. Nancy Perkins during her life the income of one fourth part of all that portion devoted to the use and benefit of Whiting Bradley Street which should remain unexpended at his death, and upon the death of Mrs. Perkins all the residue and remainder of the one third held by the trustees for the use and benefit of the grand-nephew was to be added to the remaining
It is plain, we think, that the testator intended that Mrs. Smith should receive during her life two-ninths of the net income of the trust fund. He expressly directed that the trustees should hold two-thirds of the residue as one fund for the use and benefit equally of his nieces, and that they “ shall annually apportion, divide equally and pay over to them respectively during their respective lives, [the italics are ours] the net income of said fund, to each two-ninths of the income of the aforesaid six-ninths of the said residue of my estate.” Upon the death of either of the nieces, the income of the two-ninths is to be paid over to her heirs at law, and upon the death of all of the nieces and of the nephew and of Mrs. Perkins, the trustees are to “ pay over to the heirs at law of each niece, two-ninths part of said residue, the use [of] which for her life is given to her by this will, together with all the unexpended income thereof, which shall remain at the time of her death.” It will thus be seen .that the income is to be paid over to the nieces during “their respective lives,” and that the final distribution is to the heirs of each niece of the two-ninths part of which the niece has the use during her life. Nothing could indicate more plainly, it seems to us, that the nieces are to have the income during their lives. The direction that the trustees “ shall annually apportion, divide equally and pay over to them . . . the net income of said
Decree of Prolate Court affirmed.