232 Mass. 279 | Mass. | 1919
It long has been and is now a rule in the construction of wills that estates thereby created should be treated as vesting immediately unless the testator has manifested an opposite purpose by the use of clear words. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 38, Welch v. Colt, 228 Mass. 511, 513, 514, and cases collected in each decision. Weston v. Coburn, 227 Mass. 483, 485. “The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.” McCurdy v. McCallum, 186 Mass. 464, 469. Ware v. Minot, 202 Mass. 512, 516. Gorringe v. Mahlstedt, [1907] A. C. 225, 226. If, therefore, the general plan of the
The questions now presented for decision are, whether Thomas Mullaney in the residuary clause of his will (1) created a vested or a contingent remainder in his brothers and sister of the whole blood, and (2) used the word “children” in a sense broad enough to include grandchildren.
The residuary clause is in these words: "Fifth: — All my real and other property I give to my beloved Wife for and during the term of her natural life; and at her death I give the same in equal shares to my several brothers and my sister, to the exclusion of my brother Patrick Mullaney, and to the children of any of said brothers or sister who may have deceased, by right of representation, to the exclusion of said Patrick as heir of my said estate from or through any of my other brethren or sister or their children: to have and to hold the same after the death of my Wife in fee simple as aforesaid.” It was held, when the case was here before as reported in 230 Mass. 245, that the brothers and sisters of the half blood were not included within the scope of this clause.
1. Two desires appear to have influenced the testator in framing this clause. One was to give his wife the use of the remainder of his estate during her life. That desire is neutral so far as concerns the points to be decided. The other dominating desire, and seemingly much the more imperious of the two, was to exclude from all benefaction his brother Patrick. This fixed discrimination is emphasized, not only by excluding him from the classification of his “several brothers and my sister,” but by again excluding him from the possibility of receiving anything through inheritance as heir either from any brother or the sister (if one or more should have deceased before the time for final distribution arrived), or from any child of such deceased brothers or sister. This ruling purpose can be given effect much more easily by treating the remainder as not vesting until the death of the wife. If the remainder be regarded as vesting at the death of the testator, it of course would vest as absolute in remainder subject only to the life estate of the wife. It would be difficult, if not impossible, to prevent its descent to all the heirs of a deceased intestate brother
2. The meaning of the word “children” in the residuary clause in our opinion excludes grandchildren who are the children of deceased children. The ordinary signification of “child” or “children” is immediate offspring in the first degree as distinguished from more remote descendants. Houghton v. Kendall, 7 Allen, 72, 75. Bigelow v. Morong, 103 Mass. 287. Davis v. New York Life Ins. Co. 212 Mass. 310, 313. Boston Safe Deposit & Trust Co. v. Nevin, 212 Mass. 232, 236, 237. See Welch v. Colt, 228 Mass. 511, 514; Adams v. Law, 17 How. 417. This is its primary sense. Cases have frequently arisen, however, where
So ordered.