This is a bill in equity, brought by the surviving trustees under the will of Thomas Niles, to obtain the instructions of the court as to the construction to be given to the third clause of the will. At the time the will was made the testator had four sons and four daughters living, and the children of a deceased daughter, Mrs. Sarah M. C. Cn. Rogers. The third clause of the will is as follows:
“ Thirdly all the rest & residue & remainder of my estate Real & personall I give devise & bequeath as follows two equal Ninth parts to my two Sons Thomas Niles Jr & William J Niles 2d in equal portions to each to have & hold the same to them & their respective heirs forever & the other Seven Equal Ninth parts thereof to my son Thomas Niles Jr William J. Niles 2d & John Kimball Rogers Husband of my late Daughter Sarah M. C Cn Rogers & their heirs forever & the Survivor of them & his heirs as joint Tenants in trust. Nevertheless for the following uses & purposes to wit. To invest the Same & keep the same changing the investment whenever they shall judge necessary or advisable with full power to sell & convey & sell the per
Franklin H. Niles has died since the death of the testator, leaving no issue, and the question before us is whether his share of the trust fund should be divided into six parts or into eight parts; in other words, whether the two sons who were given their portions in fee, are entitled to share with the beneficiaries under the trust, or whether the latter alone are entitled to take. The question is not free from difficulty. The will is inartificially drawn, and the intention of the testator is not readily ascertainable. The language of the will is: “ And if either of the beneficiaries of the said trust shall die leaving no issue surviving, then it is my will that the portion herein given for the benefit of said deceased be equally divided among the others.” Who are meant by the word “ others ” ? Does this word refer merely to “ the beneficiaries of the said trust,” the next preceding antecedent, or does it refer to those beneficially entitled under the residuary clause ? If the will stopped -here, there
The general intent of the testator, as shown by the division of the residue of his estate into shares, is equality. When this intent appears, ambiguous words and phrases should be construed, if possible, to carry out this intent. Minot v. Taylor, 129 Mass. 160. Bowker v. Bowker, 148 Mass. 198. Balch v. Pickering, 154 Mass. 363. The fact that in the case before us the shares of some of the children are directed to be held in trust, while other shares are given absolutely, does not prevent the operation of the principle of equality. Williams v. Bradley, 3 Allen, 270. Stedman v. Priest, 103 Mass. 293.
It was suggested at the argument that the words, “And if either of the beneficiaries of the said trust shall die leaving no issue surviving, then it is my will that the portion herein given for the benefit of said deceased be equally divided among the others ” should be read parenthetically. This would make the rest of the clause apply merely to that part which precedes the words quoted, and would make a large part of the rest of the clause unnecessary, and mere repetition, a construction which is not tobe favored. We are therefore of opinion,that the second clause of the decree appealed from must be modified in accordance with this opinion.
The clause of the decree in question directed the trustees to divide the one seventh portion of the trust fund given by the will to Franklin H. Niles into six equal parts.