Stone

138 Mass. 476 | Mass. | 1885

C. Allen, J.

The declaration of trust does not contemplate that the trust should, at all events and under all circumstances, be maintained for the benefit of the daughters’ children, but it might at any time have been terminated by the concurrence of Goodnow and of his two daughters, or, in case one of the daughters had died, by his concurrence and that of the survivor. The various provisions referring to children of the daughters are only intended to apply to the case of the death of a daughter, during the continuance of the trust, and do not require that the trust shall be continued until such death. By the death of Cynthia, leaving no children, Mary became sole beneficiary. No person thereafter had any interest in the trust estate except herself and her father. The rights of her children were not increased by the death of Cynthia. There is nothing to show that such children were to have any rights during the lifetime of their mother. The provision as to what should be done in the case of Goodnow’s decease does not in terms cover the case of his decease after that of one of his daughters, and before that of the other; but, looking at the whole instrument, we think the survivor had all the powers which both would have had if both had survived him, or else that either daughter might exercise the power of election, under the last clause, the term “ daughters ” being used distributively. In either aspect, the petitioner is now entitled to have the trust terminated.

Decree accordingly.