190 Mass. 435 | Mass. | 1906
A part of the eighth clause of the will of William Taylor, late of Roxbury, deceased, is as follows : “ And as to the other fourth part of the residue and remainder of my estate, I direct my said trustees to hold the same (after my said daughter Sarah’s decease) during the lives of her children, and to pay the net interest and income thereof to her children half yearly or oftener, if convenient to said trustees, and at the decease of said Sarah’s children the said fourth part of the capital of said residue and remainder of my estate shall be paid to her grandchildren, as they respectively attain the age of twenty-one years, such grandchildren taking by right of representation, and while said grandchildren are minors, after the decease of their parents they shall respectively receive the net income of the capital to which they will severally be entitled to at their majority.”
The plaintiff, as trustee under this will, asks for instructions upon the question whether the remainders to the grandchildren of the testator’s daughter Sarah are void under the rule against perpetuities, or valid. This daughter was a young woman at the time of the testator’s death, and she might have been expected
We are of opinion that this contention is not well founded, and that the case should be governed by the rule applied in Dorr v. Lovering, 147 Mass. 530. In this case it was held that the devise to the children was of shares afterwards to be disposed of separately, and that the limitation over, in reference to each share, was to be considered by itself alone, and was valid because, in each case that arose, the birth of the remaindermen could not have been too late. The fact that there might have been after born children whose children would have been unable to take, under the rule against perpetuities, was held to be immaterial in the determination of the rights of the descendants of the children who were born in the lifetime of the testator. That the shares of the children of Sarah are to be considered separately appears first, in the provision that they are to be “ paid to ^er grandchildren, as they respectively attain the age of twenty-one years, such grandchildren taking by right of representation ”; secondly, in the provision that “ while said grandchildren are minors, after the decease of their parents they shall respectively receive the net income of the capital to which they will severally be entitled to at their majority”; and thirdly, that they take “ by right of representation.” The intention of the testator in this particular could not be carried out without dealing with the share of each of the children by itself alone. Brown v. Farmer, 184 Mass. 136, 138.
No question can be raised as to the validity of the provision giving life estates to Sarah’s children after her death, and these vested at the death of the testator, subject to change by opening to let in after born children. Lovering v. Lovering, 129 Mass.
It follows that one half of the fourth part which was held for the testator’s daughter Sarah must go in equal shares to the four children of William T. Kennedy, namely: Addie F. Barrock, Charles E. Kennedy, Walter G. Kennedy and George B. Kennedy. The other half of this fourth part is to be divided among the heirs at law of the testator, William Taylor, as undevised estate.
In the opinion in Minot v. Taylor, 129 Mass. 160, relative to this will, is the following sentence, which at first sight seems inconsistent with the result we have reached : “ The limitation of a life estate to the children of Sarah is a valid limitation, as it vested in her child William T. Kennedy at the death of Sarah, and it is the duty of the trustee to pay the income of her share to him during his life.” In that case the court expressly declined to consider the question whether the limitation over to the grandchildren of Sarah is void for remoteness, and no claim
Decree accordingly.-