276 Mass. 496 | Mass. | 1931
This is a petition by the trustee under the will of Samuel K. Lothrop for instructions as to the disposition of a trust estate. The testator died in 1886 at the age of eighty-one years leaving a will executed in 1885, which was duly proved and allowed. He established a trust by “Item Third” of his will and directed the trustees to pay the income to his widow during her life and at her decease “to pay over and distribute the principal trust fund to and among such children of mine as may be living at her death according to the Statute of Distributions made and established in this Commonwealth, and then in force, the issue of any child now or hereafter deceased, however, to take the parent’s share by right of representation.” The widow, who was the second wife of the testator, died in 1930, at the age of eighty-five, having been about forty years old when the will was executed. When the testator died and
The controversy is whether the fund is to be divided per stirpes between the three branches of descendants of the testator or whether it is to be divided per capita among all the grandchildren, and the issue of any grandchild taking by right of representation the share of the deceased parent. The determination of this controversy depends upon the construction to be given to the words of the will already quoted, read in the light of all the testamentary provisions.
Apart from refinements of verbal construction, the impression conveyed to the ordinary mind by the clause in question is that it was intended to be applicable according to its express terms in the event that any of the children survived the life beneficiary and that in the event no children survived the statute of distributions then in force should govern the distribution. Technical analysis of the words used does not clearly enforce this view but it does not efface that impression and is not repugnant to it.
No cases are precisely apposite to the testamentary provision here to be interpreted. General principles more or less pertinent are discussed in several decisions. Knapp v. Windsor, 6 Cush. 156. Allen v. Boardman, 193 Mass. 284. Thompson v. Thornton, 197 Mass. 273. Polsey v. Newton, 199 Mass. 450. Green v. Hussey, 228 Mass. 537.
Ordered accordingly.