209 Mass. 481 | Mass. | 1911
Windsor Fay by his last will gave the residue of his estate to trustees, and directed them to pay all the income and interest thereof to his nine children, naming them, to be equally divided among them. He then provided as follows: “In case of the decease of either of my said children without children or lawful issue, I then will that the income and interest so given as aforesaid, shall in like manner be divided among the survivors, but in case my said children die leaving issue then the capital of such deceased child’s share shall be equally divided among such issue share and share alike to their heirs and assigns forever.”
One of these children died before the testator; and before August, 1868, three others of the testator’s children died, of whom two left children and one had no issue. The trustees
We cannot read this will without seeing .that it was the intention of the testator to dispose of his whole estate, and moreover to provide that all the residue of his estate, after the termination of the life estate of his own children, should go to the issue of those
The case is governed by our decisions in Metcalf v. Framingham Parish, 128 Mass. 370, and Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95. Both of these cases go upon the ground stated by Gray, C. J., in the former of them: “ If a reading of the whole will produces a conviction that the testator must necessarily have intended an’ interest to be given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mould the language of the testator as to carry into effect as far as possible, the intention which it is of opinion that he has on the whole will sufficiently declared.” In each of the cases cited, the facts presented closely resembled those which are before us. In each case, the contingency which actually happened had not in terms been provided for, just as in the case at bar the event of the testator’s last surviving child leaving no issue was not specifically provided for; but in each case the language which the testator used showed clearly and unmistakably that his intention would have been frustrated if effect had not been given to it in the manner adopted by the court. So in this case the language used leads directly and certainly to the conclusion that he intended the whole of .this fund to go finally to the, issue of his children to the exclusion of everybody else, although he did not, concern himself with its disposition after it should have come into the hands of such issue. We are not framing for the tes
But it has been argued that the language of the testator does not show that he intended the fund, in the event which has happened, to go to the issue of his deceased children. It is said that he dealt with file case of children dying without issue, and definitely provided that in that case it should go to his own surviving children, but chose to make no provision for the event of the last survivor having no issue. It is argued that he really provided that no part of the share of which children dying without issue had enjoyed the income should go to the issue of children who had previously deceased, but that the same should go to the surviving children. It is urged that his intention was that the issue of a deceased child, having received the “ capital of such deceased child’s share ’’ as it was at the time of the latter’s death, should not thereafter receive any further part or share of the trust fund; for what he said and all that he said was
This argument has been very ingeniously put by counsel, but its fallacy is that it first assumes that the testator could not have intended to make any other or further disposition of his property than what he has expressly and formally stated, and then rests upon the further assumption that the giving of a bequest to one set of beneficiaries, the issue of deceased children, together with a different disposition of other property or shares to take effect in a certain event, necessarily shows an intention that the first set of beneficiaries should in no event share in such other property. A similar line of argument applied to the facts of those cases would have reversed the decisions in Metcalf v. Framingham Parish, 128 Mass. 370, Boston Safe Deposit & Trust Co. v. Coffin, 152 Mass. 95, and in many of the other cases already cited, in which interests in bequests have been either created or extended beyond what could have been given under the mere words of the wills, in order to carry out the manifest intention of the testator. That intention must be gathered from all the language of the will, in connection with the circumstances that were known to the testator when he made it. We are not to look merely to singled out words, in which he plainly failed to express the whole of the intention which is apparent upon the face of the will.
In this case we are satisfied by reading the will that the testator intended to dispose of all his estate and to provide that it finally should go to the issue of his children.
We are of opinion upon the language of the will that distribution of the fund should now be made in equal shares among the grandchildren of the testator and the issue of any deceased granchildren by right of representation. Dexter v. Inches, 147 Mass. 324. Hills v. Barnard, 152 Mass. 67. Jackson v. Jackson, 153 Mass. 374. Dary v. Grau, 190 Mass. 482. Coates v. Burton, 191 Mass. 180. McClench v. Waldron, 204 Mass. 554.
Real estate constituting part of the trust fund should be conveyed by the trustee to the beneficiaries. Keating v. Smith, 5 Cush. 232.
Decree accordingly.