248 Mass. 296 | Mass. | 1924
The will of John, P. Monks provides for annuities to his mother and sister from the net income of the trust fund, and for the payment to his wife yearly during her life of one third of the net income remaining. It then directs the trustees to pay “ the other two thirds to all my children equally to be divided ... to their sole and separate use during their lives, and if my wife shall die before my children then her third of said income shall go equally to said children in manner afore expressed and after the decease of my mother and sister then their shares shall be divided as afore mentioned amongst my children and in case of the decease of any child or children of mine the share of such child shall go to his or her child or children (if any) otherwise shall be divided between my surviving children as aforesaid until the decease of all my children.”
The testator’s wife is deceased. He was survived by seven children. Henry died in 1893, unmarried; and thereafter his share in the income was distributed among the six surviving children. The share of Richard, who died in 1911, has since been divided between his two children, Allan B. Monks and Grace B. Monks. Katherine E. (Bradford) died in 1918, and her share in the income has since been paid to her son, Harold S. Bradford. Robert H. died in 1923, without issue. Surviving him are three other children of the testator, Louisa D. Hempel, Frank H. Monks and George H. Monks. The trustees brought this bill for instructions whether Robert’s share of the income should be divided among his surviving sister and brothers; or whether the children of his deceased brother and sister, Richard and Katherine, should participate in the distribution.
As above stated the language of the will on this point is: “ and in case of the decease of any child or children of mine the share of such child shall go to his or her child or children (if any) otherwise shall be divided between my surviving children as aforesaid until the decease of all my children.” It is generally recognized that a gift over to “ my surviving
The trustees should be instructed to divide Robert H. Monks’ share of the income among his surviving brothers and sister during their lives. The allowance of costs out of the fund, as between solicitor and client, is to be determined by a single justice.
Decree accordingly.