| Mass. | Mar 15, 1873
The plaintiffs seek the instruction of the court as to their duties as trustees under the wiE of Jonathan Simonds. When the wiE was made, and at the death of the testator, his only children were two sons, both of whom were chEdless. The general scheme and purpose of the testator, apparent from the wiE, was to divide the bulk of his estate into two parts, to give the use and income of one part to each of his sons during his life, and at his death to give such part to his issue should he leave any; but if both sons should die without issue, then to
It is contended that this gave George an estate tail; buy we think such a construction would defeat the intentions of the testator. The third clause-further provides, that should George die, leaving no children or descendants of children, the income is to be applied to the use of Albert during his life, so far as necessary, and the balance to be invested and allowed to accumulate. The fourth clause devises certain real estate to the trustees for the use of Albert, an insane son, and provides that, if the income shall be insufficient for his comfortable support, the trustees are to take out of the income of the estate devised for the benefit of George a sum “ sufficient for that purpose, so that not more than one half of the property devised for my son George W. shall be appropriated to make up such deficiency."
These provisions of the will show that it was the intention of the testator to give George merely an estate for life, and not a larger estate with the power of alienation.
The same considerations apply to the estate devised by the eighth clause of the will.
Albert having died without issue, before George, the next question raised is, what estate did George take in the estates devised to the trustees for the benefit of Albert ? It is clear that the testator intended to give Albert an estate for life in the estates devised by the fourth and fifteenth clauses of the will.
It seems clear that it was not the intention of the testator, by this clause, to give to George either an estate in fee simple or an estate tail. Either estate involves the power of alienating the fee, and thus entirely defeating the limitation over to his nephews and nieces. Construing this provision in view of the general scope and scheme of the will, we are inclined to think that it gave George an estate for life merely; but whether it gave him a life estate, or a base or qualified fee determinable upon the event of his dying without issue, is immaterial upon either theory; in the contingency which has happened, the effect would be the same, and the limitation over to the nephews and nieces would take effect upon the death of George, unless it be void for remoteness.
The next question is whether the devise over to the nephews and nieces can, consistently with the rules of law, take effect according to the terms of the will, or whether it is void as creating a perpetuity. This is a limitation over, not upon an indefinite failure of issue, but upon a definite failure of issue at the death of George. It presents the case of a devise to George of a life estate or a base fee, and at his death without issue, a limitation over to the nephews and nieces for their lives, and upon the limitation over upon their death to their children or legal representatives. The same question arose in Lovering v. Worthington
As to the estate in Charter Street, devised by the fifth clause to the trustees, “ to take and receive the rents and income of the same for the use and benefit of my son George W. Simonds, until he arrives at the age of forty years, and on his attaining that age, or should die without issue, then to the use of said George W. and his heirs,” we are of opinion that the trust terminated upon the arrival of George at forty years of age, and no further instructions to the trustees are required or can be given under this will.
As the title to the real estate in question was in the trustees, and George had no legal seisin, the claim of his widow to dower cannot be sustained. Reed v. Whitney, 7 Gray, 533. Lobdell v. Hayes, 4 Allen, 187. Loring v. Blake, 98 Mass. 253" court="Mass." date_filed="1867-11-15" href="https://app.midpage.ai/document/loring-v-blake-6415192?utm_source=webapp" opinion_id="6415192">98 Mass. 253.
We are of opinion that the sum awarded by the city of Boston as damages for a portion of the Warren Street estate taken for public use, must be regarded as real estate for the purposes of the trust. The legal title to the land taken was in the trustees; the taking it by the city cannot change the rights of the parties. It is merely a change of the trust securities, and the sum awarded in damages is to be treated as the real estate would be in the place of which it stands. The claim, therefore, that it passed to the administratrix of George cannot be sustained.
It seems to us also clear that the claim of the children of Hannah S. Robbins cannot be sustained. The devise in the fifteenth clause is not to all the testator’s nephews and nieces. He specifies by name his brothers and sisters whose children are intended to be the objects of his bounty. It is a devise to a class, but the description of the class does not include, but plainly excludes, the children of his sister, Mrs. Robbins. Tucker v. Boston., 18 Pick. 162.
We are of opinion that upon the death of George W. Simonds the trust terminated by the operation of the will. No provisioi