227 Mass. 247 | Mass. | 1917
James W. Fenno, the testator, died in 1868, leaving a widow, Martha J. L. Fenno, a daughter, Martha A. Upton, and a son, James W. Fenno. The trustees were directed to pay to each of these for life one third part of the income. The will then expressly provided: “Upon the decease of either of my children leaving issue of his or her body lawfully begotten then such issue shall inherit share and share alike the portion of said real and personal estate to the income of which their parent was entitled be entitled to partition of the real estate and to the portion set off to them on such partition in fee simple and to their rightful share of said personal estate to their sole use.” Accordingly, when said Martha A. Upton died on May 5, 1884, the trustees should have distributed one third of the principal of the trust to her children Myra F. Upton (now Cutler) and Isabelle T. Upton (now Elms) in equal parts. It is also clear that from the death of the testator’s said daughter in 1884 until the death of his widow on October 25, 1898, the income of the remaining trust estate was payable in equal shares to his widow and son.
The event which has happened, namely the death of the widow after that of the daughter, is not specifically provided for in
It fellows from what has been said that the decree of the single justice must be affirmed with costs.
Ordered accordingly.