315 Mass. 584 | Mass. | 1944
The petitioner seeks instructions as to the distribution of a trust fund created by the will of John
John Fallon died in 1889, leaving a widow and six children. The widow died in 1893. The children were Emma E. Fallon, Dalton Fallon, John Howard Fallon, Franklin Fallon, Jeannette M. Fallon and James E. Fallon. All the children survived both the testator and his widow. The will, made in 1886, after providing for the payment of debts and expenses, set up a trust of the residue in the hands of the executors as trustees. The testator’s widow was to have the use and income during her life. Pertinent provisions to take effect upon the death of the widow are contained in paragraphs Fourth, Fifth, Sixth, and the first portion of paragraph Seventh. We quote them as they appear in the will.
“Fourth: The residue of said estate shall then be held by my said executors for such of my children as may be living at the decease of my said wife and for the lineal descendants of any child who shall have died before that time, such lineal descendant taking by representation the share to which such deceased child would have been entitled if living; and my said executors shall pay to them severally semiannually or oftener the net income thereof; but said estate or its income shall not be anticipated by assignments or otherwise and shall be free from the interference or control of creditors. The said residue shall be held for my children, except as stated below, until the expiration of their natural lives and for such lineal descendants, if any until they shall severally attain the age of twenty one years or "until their deaths respectively before attaining that age.
“Fifth: If either of my children shall die, leaving no issue but a widow or widower surviving them that share shall still be held and the income thereof shall be paid to such widower or widow until he or she shall remarry or die.
“Sixth: Upon the termination, as above provided, of the right of such of my children as shall outlive my said wife, the share held for such child shall be transferred to his or her lineal descendants, if any are living. If such child has
“Seventh: If the provision herein made for the lineal descendants of any child who dies during the life of my said wife, terminates by the arrival of such descendant at the age of twenty one years, the share of such descendant shall thereupon be transferred and paid to such descendant. If any such lineal descendant of a child who dies during the life of my said wife shall die under the age of twenty one years, his or her share shall be added to the fund held for the other descendants of such child. If all such descendants of such child who dies during the life of my said wife, shall die before attaining the age of twenty one years, the fund held for them shall be added to the funds in the hands of my said executors and held for my other children and their descendants upon the conditions hereinbefore stated.”
After provisions relating to investments and sales occurs this clause, “I give to my children . . . [naming them] no estate in present possession and no estate except as above stated.”
Upon the death of the testator’s widow, the income of the fund was paid to the testator’s children under paragraph Fourth. Since all the children survived the widow, the provisions of that paragraph and of paragraph Seventh for the lineal descendants of any child who died before the widow never became operative. Between 1911 and 1941, inclusive, all the children of the testator died. The son Dalton Fallon left as a lineal descendant his daughter Mary L. Moliesen, a granddaughter of the testator. John Howard Fallon left as a lineal descendant a son Howard Fallon, who died in 1931, leaving a son Joseph Greenleaf Fallon, who is still living and who is a great-grandson of the testator. The other sons and the daughters of the testator died without leaving lineal descendants. Upon the deaths of the testator’s children who left lineal descendants the proportionate shares of the capital of the trust fund upon which such children were then receiving income were paid
But Jeannette M. Fallon left no lineal descendants, and out of this fact arises the present difficulty. Upon the previous deaths of each of the children of the testator it has been possible to carry out exactly and literally the provisions of paragraph Sixth. If the child left lineal descendants, as two of them did, “the share held for” the deceased child could be, and was, paid over to his lineal descendants. If the child left no lineal descendants “the share of such child” could be, and was, “held for the same purposes as the other funds in their hands” — to pay the income to remaining children. But now there are no remaining children, and “the share” of Jeannette M. Fallon was itself the whole remaining fund. There are no “other funds” in the present trustee’s hands to which this sum can be added. Paragraph Sixth by its terms seems intended to apply upon the occasion of the death of Jeannette M. Fallon as it has applied upon the occasions of the deaths of the other children of the testator, but to comply literally with its provisions has become impossible. The appellants, who would take in
We are satisfied that the testator intended to make a complete disposition of his property and did not intend an intestacy in the one contingency that has happened. The difficulty is that he expressed himself in terms inappropriate to the particular event. If, however, his true intent can be discovered from the will itself by an examination and comparison of all its parts it is our duty to give effect to that intent, even though it is not set forth "by express and formal words.” We must “supply the defect by implication.” Metcalf v. First Parish in Framingham, 128 Mass. 370, 374. In our opinion the scheme of the will as a whole indicates that all the capital of the trust was eventually to be distributed among the lineal descendants of the testator’s children by right of representation. No final distribution to anyone else is provided for anywhere in the will. It is made plain by paragraphs Fourth and Seventh that final distribution of the “share” of any child who should die before the testator’s widow was to be made to his lineal descendants by right of representation, and that in the event of failure of the line of any child before distribution his "share” should be held for the other children and their lineal descendants according to paragraph Sixth. Paragraph Sixth carries out the same general scheme with respect to the shares of children who survive the widow. If Jeannette M. Fallon, the last survivor, had left lineal descendants the testator’s scheme would have been carried to completion without difficulty. The entire capital of the trust would have passed to lineal descendants of his children. The “share” of each child who died without lineal descendants
This is no doubt a strong application of the principle of Metcalf v. First Parish in Framingham, 128 Mass. 370, and carries that principle about as far as it ought to go, but still we think that it falls within the boundaries of construction and does not make a new will for the testator. It goes no farther than this court went in Sanger v. Bourke, 209 Mass. 481. In that case the testator had made a disposition of his property strikingly similar to that in the present case, and there, as here, the last surviving child had died without issue. It was held that the capital of the fund, as it then existed, should revert to the issue of those children who had previously died leaving issue, to be distributed among them by right of representation, notwithstanding that they had previously received the shares of the capital of which their own ancestors were at the times' of their deaths receiving the income: Somewhat similar cases reaching a similar result are Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, Dary v. Grau, 190 Mass. 482, and Wentworth v. Bell, 249 Mass. 120. See Fitts v. Powell, 307 Mass. 449.
Costs and expenses of this appeal may be allowed in.the discretion of the Probate Court.
Decree affirmed.