Richards v. Burbank

201 Mass. 253 | Mass. | 1909

Hammond, J.

By the second clause of the will the widow took a life estate in the real estate of the testator; and by the "third clause each of the children took an undivided sixth of the remainder in fee. Assuming in favor of the tenant that this interest in remainder was vested at the death of the testator, it nevertheless was liable in the case of each child to be divested by the happening of a contingency, and that contingency was the death of the child before the death of the life tenant. In case a child thus died, the estate which had been vested went (if the child was unmarried and without issue) to the testator’s surviving children; but if such child left “ a child or children born in lawful wedlock,” then it went to the latter. But any such grandchild was to hold his share of the estate “ in the same manner ” and “ by the same title ” as it would have been held by its parent if living. This means that the estate of any such grandchild was liable to be divested by its death before the death of the life tenant.

Such seems to be the plain reading of the will; and the intention of the testator, as thus expressed, can be carried out without violating any rule of law.

It follows that upon the death of the daughter Sarah, which occurred in 1856, her interest, being one undivided sixth, in the' remainder passed by the terms of the will to her child Sarah, and upon the latter’s death in 1862 the interest passed under the will to the testator’s children then living, one of whom, Reuben, was tire father of the demandants. Upon the death of Reuben in 1895, his interest, now being one undivided fifth, became divested and passed under the terms of the will to his children, the demandants. They took, not as the heirs of their father Reuben, but under the will of their grandfather, the testator, and therefore their rights are not at all affected by their father’s deed to Sherman Bowers in April, 1861, under which through mesne conveyances the tenant claims. The ruling given at the trial was correct, and the ruling requested by the tenant was rightly refused.

Judgment for the demandants for an undivided one fifth interest in the demanded premises.