Simonds v. Simonds

121 Mass. 191 | Mass. | 1876

Devens, J.

It was decided in Simonds v. Simonds, 112 Mass. 157, that the trust in reference to the Charter Street estate terminated upon the arrival of George W. Simonds at the age of forty years, but it was not there held, as contended by the demandant, that George W. died .seised in fee of the premises of which the demandant now claims one half in lieu of dower. That was a bill in equity brought by trustees under the will of Jonathan B. Simonds for instructions, and it was sufficient for that case to determine that, at the arrival of George W. at the age of forty, the trust ceased as to this estate, and that he was entitled to enjoy the estate devised to him discharged therefrom, and that no instructions were necessary in relation thereto. It was not important to decide what was the character of the estate devised. It was there said that the general scheme and purpose of the testator apparent from the will 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 give the whole estate to the nephews and nieces named in the residuary clause, for their lives, and upon their death to their children or legal representatives. As we are satisfied, on reexamining this complicated will, that we were not in error as to its general purpose, the fifth clause, containing the devise of the Charter Street and Goodrich Alley estates, is to be considered in connection with that purpose, as shown by the clause itself and the other clauses of the will, in order that the intent of the testator may be carried out, if it can be ascertained from the will, and if it be possible to do so.

The fifteenth clause provides that, in case his sons George W. and Albert should die without issue, all the residue of his real estate “before limited, appointed and devised," and all his “ other estate, real and personal,” should be divided among certain nephews and nieces. While no mention is made of these estates, the testator contemplates that he has not finally disposed of his real estate, and that, of that which has been before limited, appointed and devised, there is or may be yet a residue to be disposed of. This he proceeds to do by the limitation over to the nephews and nieces, which of course would be defeated, so far as these estates are concerned, if George, by living to the age of forty years, had obtained a fee simple in them.

The portion of the fifth clause by which these estates are devised to 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 leaving issue, then to the use of said George W. and his heirs, unless the same should be destroyed by fire," is followed by a provision, in that contingency, for the sale of the property, and such an investment of the proceeds as shall enable the two sons, George W. and Albert, to receive the income for their lives. It is further provided that the Goodrich Alley estate may be disposed of, at the discretion of the trustees, after George W. arrives at the age of' twenty-one years, the proceeds to be invested as provided in case of a sale of the property after destruction of the buildings. These portions of the clause are not consistent with the idea that it was intended to give to George W. an estate in fee simple in these two parcels upon his arriving at the age of forty years, while in the other parcels he took only.an estate for life. They show that the testator adheres, in regard to these estates, to the idea that, in case of the death without issue of his two sons, all that they are to have is an estate for life, and that there will be a residue to be devised. Had these two parcels been sold, in accordance with the provisions enabling the trustees so to do, the limitations over upon the death of the two sons would have taken effect, as all that they were entitled to receive, when the estates were reduced to money, was the income for their lives. Nor is it readily conceivable that the testator should have designed that an estate, which he intended should become an estate in fee if George lived to the age of forty, should, if the buildings were destroyed by fire, be exchanged for a right to the income only of the proceeds thereof, in common with his brother, for their lives, nor that, as to the Goodrich Alley portion of the estate, it might be so exchanged simply at the discretion of the trustees.

It is also to be observed that, if these estates became estates in fee simple on the arrival of George at the age of forty years, this is at variance with the general purpose of the testator to provide for the issue of his sons, if they should die leaving issue.

The words by which this property is devised to trustees, “ until he ” (George) “ arrives at the age of forty years, and on his attaining that age, or should die leaving issue, then to the use of said George and his heirs,” might, if they stood alone, be construed as giving an estate in fee to George upon his arrival at the age of forty years. They are, however, not easily susceptible of literal construction, as, if the words “ to the use of said George and his heirs ” be applied to the devise upon the occurrence of each of the contingencies, it would be a devise to the use of George in the event of his death, leaving issue. If they are construed distributively, with reference to the two contingencies upon which the estate is limited, they are intelligible and accord with the general purpose of the will. Keeping in mind the provisions of the fifteenth clause of the will, and also the intent of the testator, clearly manifested, to provide for the issue of his sons, the construction of the clause is, that if George arrives at the age of forty, the estate is to be to his use for life, and if he dies at any time leaving issue, then to the use of his heirs, who would of course be the issue before referred to.

The third clause, by which the mansion house of the testator and Ms store on Washington Street are devised, indicates that while, for the protection of his insane son Albert, he thought it necessary to place in the hands of trustees that property the use of which he devised to George, he also had confidence in the ability of George to manage it. In reference to that estate, while in form the trust was to continue, the actual management was to be by George, after he should arrive at the age of twenty-one years. In reference to this, the intent was that if George should arrive at the age of forty years, the trust should terminate, and the estate become that of George for life.

As, under our construction, this was all that George took, there must be Judgment for the tenant.