257 Mass. 586 | Mass. | 1926
This is a petition for instructions as to the meaning of the will of Benjamin F. Doak. In the first paragraph of his will he left a fund of $10,000 in trust, the
In the construction of wills it is presumed that a vested remainder is intended unless it reasonably appears from the entire will that the remainder was intended to be contingent. Richardson v. Warfield, 252 Mass. 518, 521. Words of present gift may be of significance in determining that the remainder is vested. See Gardiner v. Everett, 240 Mass. 536, 539. The intention of the testator, however, as shown by the will itself taken as a whole must prevail, unless contrary to law. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 38.
In the case at bar the testator provided that if there should be no child of his brother “then living” at the death or marriage of the brother’s widow (his “father, mother and brother having deceased”), the fund was to go to the testator’s own children and their heirs. As there were children of his brother living at the time, the event provided for in this clause of the paragraph cannot happen, but the language of this provision is not to be overlooked in ascertaining the intention of the testator. The words “then living”
The children of his brother were intended by the testator to be the objects of his bounty, and the remainder was a contingent one; it was therefore not vested in the children of his brother, so as to take away from the testator’s own children and their heirs what he had bequeathed to them, unless the children of the brother were alive when the fund was to be paid over. In our opinion the remainder was contingent, and this construction is in accordance with the intention of the testator. The judge of probate therefore was right in his decree ordering the distribution of the trust fund among the children of Francis E. Doak who were living at his decease.- See in this connection Smith v. Rice, 130 Mass. 441; Denny v. Kettell, 135 Mass. 138; Harding v. Harding, 174 Mass. 268; Carr v. New England Anti-Vivisection Society, 234 Mass. 217; Welch v. Williams, 237 Mass. 373. The respondent relies on Porter v. Porter, 226 Mass. 204. That case is not contrary to the conclusion reached in the case at bar.
The petitioner, who is the trustee of the fund, has filed a brief contending that the gift was a contingent remainder to a class to be determined at the death of Francis E. Doak; that the defendants Hattie A. Boyce, Bessie G. Mears and Mary S. Doak, the children of Francis E. Doak who survived him, are entitled to the fund. This practice was contrary to
Decree affirmed, with further costs in the discretion of the judge of probate, payable from the fund, to the administrator, taxed as between solicitor and client.