Sears v. Brown

241 Mass. 523 | Mass. | 1922

Braley, J.

The will of the testatrix contains this clause, “All

the rest and residue of my property and estate wherever situate I give and devise to my sister Mary Brown. If my sister Mary shall not survive me I direct my executor or administrator with this will annexed to give and distribute sundry keepsakes, articles and personal chattels to the persons designated to receive the same in a list which I shall leave in my own handwriting, and I give all the residue of my property not named in said list to the following persons and to the survivors of them if any shall have deceased before me,;namely: Margaret May Blake and her daughter Maude Douglass Blake, Agnes Armstrong Brown, Alice Marsh Jackson and her daughter Anna Stuart Jackson.” Mary Brown and Margaret May Blake having died before the testatrix, the plaintiff asks whether the residue of the estate consisting of personal property which is not named in the list shall be divided equally between the three classes, namely, “Margaret May Blake (now deceased) and her daughter, Maude Douglass Blake, Agnes Armstrong Brown, Alice Marsh Jackson and her daughter Anna Stuart Jackson, or is the residue of said estate to be divided equally between Maude Douglass Blake, Agnes Armstrong Brown, Alice Marsh Jackson and Anna Stuart Jackson.”

The intention of the testatrix governs the construction. Margaret May Blake and Agnes Armstrong Brown were daughters of her brother John Brown, Alice Marsh Jackson was the daughter of her brother Lewis Brown, and Maude Douglass Blake and Anna Stuart Jackson were her grandnieces. It is obvious that if living at her death she intended the grandnieces should share with her brother’s children. The gift is to them and to the survivors of them. While each legatee is named they take as a class, and the share which would have come to Margaret May Blake, if she had survived, accordingly did not lapse, but passed to the survivors. Dow v. Doyle, 103 Mass. 489. Dove v. Johnson, 141 Mass. 287. Wheaton v. Batcheller, 211 Mass. 223. It follows that the bequest is to be divided equally between them. Sohier v. Inches, 12 Gray, 385. Jackson v. Roberts, 14 Gray, 546. Swallow v. Swallow, 166 Mass. 241. Best v. Berry, 189 Mass. 510. Smith v. Haynes, 202 Mass. 531. Boston Safe Deposit & Trust Co. v. Reed, 229 Mass. 267, 271.

The decree of the court of probate is affirmed with costs taxed on the fund as between solicitor and client.

Ordered accordingly.