169 Mass. 523 | Mass. | 1897
The testator left three surviving brothers, one of whom had four children, another three, and the other two. He had no other near relatives. By his will he left an equal annuity to each of his three brothers, and legacies of $4,000 each to seven out of his nine nephews and nieces, and the income of $5,000 to each of two married nieces, with a provision that the principal should be paid to each on the death of her husband. The residue, from which the annuities would have to come, was given in trust, with this provision: “ On the deaths of my brothers John, Henry, and Josiah B. Siders, convey, assign, and pay over all the residue of my said estate, real and personal, in equal shares by right of representation to my nephews Charles B., Henry F., George E., and John T. Siders, and my nieces Mrs. Sarah D. Blanchard, Mrs. Almena F. Perry, Mrs. Maria B. Orcutt, and Miss E. B. Siders, and Mrs. Isabella Marie.” Of these, George E., John T., Almena F. Perry, and Maria B. Orcutt were children of the testator’s brother John, and lived respectively in Hingham, Boston, Quincy, and Weymouth; Henry F., Sarah D. Blanchard, and Miss E. B. Siders were children of the testator’s brother Henry, and two of them lived in Hingham, and one in Quincy; Charles B. and Isabella Marie were children of the testator’s brother Josiah B., and lived respectively in Cambridge and Medford. The question presented for determination is whether the nephews and nieces take the residue per stirpes or per capita.
But for the words “ by right of representation,” there could be no doubt that each nephew and niece would be entitled to an equal share. But for the words “ in equal shares,” there could be no doubt that they would take per stirpes. The difficulty arises from the use of the two expressions in juxtaposition.
Not much aid is derived from a perusal of the other parts of the will. The testator’s brothers fared equally. The particular bequests to his nephews and nieces have already been mentioned. His nephew Charles B. was appointed an executor.
We have a difficulty in giving any adequate meaning to the words “ by right of representation,” except upon the theory of a distribution per stirpes. These words, though technical, are not obscure, and most men of ordinary intelligence, who have occasion to dispose of their property by will, and who use the words, may be supposed to know their meaning. They are found in the statutes of the Commonwealth respecting the descent of real estate, and their meaning is defined. Pub. Sts. c. 125, §§ 1, 6. The natural inference is that persons know the meaning of the terms they use, unless there is something to show the contrary. On the whole, it seems to us that the words of the will fairly import an intention to distribute the residue per stirpes, and some support to this view is found in the authorities collected by counsel.
The counsel for Charles B. Siders cited in his brief on both points the following cases: Talcott v. Talcott, 39 Conn. 186. Raymond v. Hillhouse, 45
