197 Mass. 273 | Mass. | 1908
The question to be determined is the distribution of the residuary estate of Isaac H. Burditt, who died in April, 1903, at the age of seventy-nine years. The next of kin are twelve nephews and nieces and seven grandnephews and nieces, the issue ‘of the two deceased nieces, all being the descendants of one brother and two sisters of the testator. His son, Isaac F., mentioned in the will and living at the time it was executed, predeceased the testator. The prefatory clause of the will shows a plain intent to dispose of all his property. The only other clause now material is as follows: “All the rest and residue of my estate real, personal or mixed I bequeath to Charles Emerson Stevens of Marlborough in our County of Middlesex and William B. Batchelder of Boston in our County of Suffolk, both in our Commonwealth of Massachusetts, but in trust to be used and expended by said Trustees for the comfortable support and maintenance (and including funeral expenses) according to their best judgment of my infirm son Isaac Frederick Burditt of said Malden during his life, and at his decease to pay and distribute, after paying their expenses of said Trusteeship, the residue of my estate, if any thereof shall be left, in equal shares to my relatives, by right of representation under the Statutes of this Commonwealth.”
The first point argued is that this bequest to relatives is contingent upon the happening of the death of Isaac Frederick Burditt and a balance of the trust fund remaining in the hands of the trustee after his death, and that, as Isaac Frederick died during the life of the testator, this contingency can never happen, and the legacy has lapsed. McGreevy v. McGrath, 152 Mass. 24, decided that when a testamentary provision is so framed as to take effect only upon the happening of a certain event, and it is clear that the designated event can never happen, then the provision cannot be executed. Where one makes a will conditioned to be operative only in the event of the testator’s decease during a particular journey, and he has a safe return home, there is then no will. But that principle has no application to the facts here presented. This is the ordinary case of a devise over after the termination of an interest for life. The death of the life tenant before the testator simply accelerates the time when the devise over becomes operative. Prescott v. Prescott, 7 Met. 141. Bates
The next doubt suggested is as to the meaning of the testator in employing the words, “ in equal shares to my relatives, by right of representation under the statutes of this Commonwealth.” Although “ relatives,” as popularly used, is a word of general and comprehensive signification, it has acquired a definite and restricted sense when occurring in wills, and unless a contrary intention appears, it is construed as the equivalent of those persons who would take under the statute of distributions either as next of kin or by representation of next of kin. Esty v. Clark, 101 Mass. 36. Gardner on Wills, 431. The remaining difficulty of interpretation arises from the words “in equal shares,” for without these, the intent would be clear that there should be distribution under the general law. This intention is expressed with emphasis by reference to the statutes of the Commonwealth, to which the testator appeals as the final standard for the .distribution of his bounty, and the words, “ by right of representation,” which is a phrase of the statute of distribution, give added force to this expression. The words “ in equal shares ” do not manifest a purpose to modify what has been before clearly and aptly expressed, and can be given effect by interpreting them as meaning with such equal regard to the rights of all his heirs at law as the law itself recognizes in the statute of distributions. The cases upon the use of these words are fully reviewed in Allen v. Boardman, 193 Mass. 284. The intention of the testator was to have his estate distributed, in the event which has occurred, according to the law for the distribution of intestate estates.
Where, however, an heir at law under a will tabes the same estate in nature and quality as he would inherit in ease of intestacy, he tabes the estate by descent and not as devisee. Ellis v. Page, 7 Cush. 161. Pierce v. Smith, 13 Allen, 42. It does not distinctly appear from the decree of the Probate Court that the distribution is made according to the terms of the will and not under the statute of distribution, and therefore no modification of it is necessary. The executor can be authorized to dis
Decree of Probate Court affirmed.
