129 Mass. 164 | Mass. | 1880
In the will which we are called upon to construe, the testatrix gives the residue of her estate to a trustee to hold in trust “ for the following objects, to wit: In case my daughter shall be left a widow, to pay over to her during her widowhood all the interest on such sums as may be in his hands at the time she shall become a widow. And in case my said daughter-Mary L. Hathaway shall leave any child or children, the amount in said trustee’s hands shall be paid over to such child or children at their maturity or when of full age of twenty-one years. And in case said Mary L. shall leave no child or children, then the amount in my trustee’s hands shall be paid over to my brothers Joel and Benjamin or their several legal representatives, in equal proportions to said Joel and Benjamin or their several representatives, meaning their children.”
The testatrix died in February 1875, leaving a daughter Mary L. Hathaway, who died in July 1875, leaving a husband and two children, Carl, who was born on February 25, 1872, and Simon, who was born on April 6, 1875, and who died on August 6, 1875.
Under these circumstances, we have no doubt that the brothers of the testatrix, Joel and Benjamin, take nothing under the will, the limitation over to them being intended to take effect in case the said Mary L. shall leave no child or children at her death, that is, upon a definite failure of issue.
The principal question in the case is, whether, under the eighth article, the equitable interests of the children of Mary vested either at the death of the testatrix or of Mary, or whether the vesting is postponed until the children respectively become of age.
The will is inartificially drawn, and we do not attach any importance to the fact that it is not in the form of a direct gift or bequest to the children, but of a direction to the trustees to
Again, in construing the will, we must take our stand at the death of the testatrix and look at all possible contingencies. If the equitable estates of the grandchildren do not vest until their maturity, then in case one of the grandchildren should die before maturity leaving issue, such issue would take nothing, a result which would not be presumed to be intended by the testatrix unless such intention is clearly manifested.
Upon the whole, we are of opinion that, under this will, the grandchildren took interests in the nature of remainders, which vested in them at least upon the death of their mother. It is not necessary to inquire whether they vested at an earlier period. It follows that, upon the death of Simon Hathaway, his interest in the trust fund passed to his father under our statutes of distribution, and the trustee holds the fund one half for the benefit of Carl, and one half for the benefit of the father, Asa S. Hathaway. As to this last-named half, the trustee holds it upon a mere dry trust. As to it, the scheme of the testatrix has been defeated by the events which have happened, and the eestui que trust is sui juris and capable of managing his property. It is