143 Mass. 439 | Mass. | 1887
The question in this case arises on the residuary clause of the testator’s will. By this he bequeathed the residue of his estate to his nephews and nieces, “ in severalty, to share and share alike,” except William A. Foss, his brother Luther’s oldest son. One half of each portion was to be paid by the executors directly to them respectively, or their guardians when they were under age, and the other half of said portions was to form a trust fund for the benefit of said nephews and nieces, the income to be equally divided during their lives. The will then provides as follows : “ At the decease of either of the said nephews and nieces, I give and bequeath such one’s half portion and interest on the trust fund to his or her legal heirs ; and, at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs, including William A. Foss’s heirs, my brother Luther’s oldest son.”
Lucy D. Sischo, one of the nieces, having died, her daughter Peninnah now seeks to have paid to her the share or the half portion held in trust primarily for the benefit of her mother, the trust fund contemplated by the will having been formed. If the husband of Lucy D. Sischo has any right in the fund, that right is expressly waived, and need not be considered. It is upon the claim made by Peninnah that the trustee, by this bill, seeks instructions.
It is suggested that the words “ such one’s half portion ” used in the first clause may refer to the half portion not in trust, and
The trustee should, therefore, be instructed that the half portion heretofore held in the trust fund for the benefit of Lucy D. Sischo should now be paid to her daughter.
So ordered.