103 Mass. 293 | Mass. | 1869
Technical rules of interpretation will not be permitted to control the general rule, that the intention of the testator, as gathered from the whole will, must govern in its construction. Thus, although it is a rule that, when an aggregate fund is given to several, to be divided among them, nominatim, in equal shares, if one of them dies before the testator, his share will lapse; yet the mere fact that he mentions by name the individuals who make up the class is not conclusive, and if the intention to give a right of survivorship is collected from the remaining provisions, applied to the existing facts, such intention must prevail.
We think the manifested intention in this case requires us to disregard the technical rule of construction alluded to. The testator, leaving eight children, and grandchildren representing two deceased daughters, divides the residue of his estate into ten equal parts, six of which he gives to six of his children, two to trustees for the remaining two children, and, of the other two parts, one be gives to three grandchildren, children of one deceased daughter, and the other to one grandchild, child of another deceased daughter. He divides the shares given in trust, in the event of the death of the devisees without issue, by the rule of representation. And he directs all advancements to be deducted from each child’s share. He gives to one grandchild as much of bis estate as he gives to her half sisters and brother, children of another daughter, three in number; affording the strongest evidence that he intended it all to be devised per stirpes.
The children of each of the deceased daughters constitute a class by themselves, representing their mothers; and the surviving grandchildren, Mrs. Dobson and Mrs. Holmes, take the share that would have gone to their brother John, had be survived the testator. Jackson v. Roberts, 14 Gray, 546, 550. Schaffer v. Kettell, 14 Allen, 528. Balcom v. Haynes, Ib. 204.
Decree accordingly.
