| Mass. | May 18, 1910
The testatrix, after having provided for the payment of debts, funeral expenses and the maintenance of her family burial lot, and making small pecuniary bequests to her sister and several public charities, devised and bequeathed by the eighth clause of her will the residue of her property in trust. The trustee, who was given ample discretionary powers in the investment and management of the estate, was directed to pay over the income to her sons, “ Charles H. Patch and Fred C. Patch share and share alike . . . upon the death of either to pay his share of the income to the lawful issue of his body, but if he dies without such issue then to pay the entire net income to the survivor: upon the death of both this trust shall cease and determine.” The sons who survived their mother were her only
If the use and income had been directly given to the sons, or if, after using such terms, the gift had been coupled with the further provision that the estate should be held in trust, a construction could be adopted that the testatrix intended an absolute gift of the principal, or that the sons took an equitable fee, and a partial intestacy would be avoided. Chase v. Chase, 132 Mass. 473. Seaver v. Griffing, 176 Mass. 59" court="Mass." date_filed="1900-05-16" href="https://app.midpage.ai/document/seaver-v-griffing-6427074?utm_source=webapp" opinion_id="6427074">176 Mass. 59. Fay v. Phipps, 10 Met. 341. Holden v. Blaney, 119 Mass. 421" court="Mass." date_filed="1876-01-29" href="https://app.midpage.ai/document/holden-v-blaney-6418395?utm_source=webapp" opinion_id="6418395">119 Mass. 421. Warren v. Street Commissioners, 181 Mass. 6" court="Mass." date_filed="1902-03-01" href="https://app.midpage.ai/document/warren-v-street-commissioners-6427762?utm_source=webapp" opinion_id="6427762">181 Mass. 6, 15. Chauncey v. Francis, 181 Mass. 513" court="Mass." date_filed="1902-05-23" href="https://app.midpage.ai/document/chauncey-v-francis-6427901?utm_source=webapp" opinion_id="6427901">181 Mass. 513. Chauncey v. Salisbury, 181 Mass. 516" court="Mass." date_filed="1902-05-23" href="https://app.midpage.ai/document/chauncey-v-salisbury-6427902?utm_source=webapp" opinion_id="6427902">181 Mass. 516. Hayward v. Rowe, 190 Mass. 1" court="Mass." date_filed="1905-12-11" href="https://app.midpage.ai/document/hayward-v-rowe-6429159?utm_source=webapp" opinion_id="6429159">190 Mass. 1.
But, evidently intending to provide a permanent income for her sons, she placed the residue in trust, which-gave them no right to possess or power to use the principal, and the legal title remained in the trustee until the termination of the Gribbs v. Marsh, 2 Met. 243. It may be, that she overlooked the contingency that both sons might die childless, or that after her purpose for the benefit of her children or grandchildren had been accomplished, if no further provision was made, the property would go to her next of kin. It is also conceivable that, having the matter in mind, she did not care to make any disposition of the remainder upon the falling in of the equitable life estates. But whatever may have been the reason, the language she employed being unambiguous and the other clauses of the will failing to disclose a different intention, the evidence of conversations with the testatrix either before or after the will was executed and published, offered by the defendants, was inadmissible to vary or enlarge the terms of the instrument or to supply possible omissions. If extrinsic evidence of this character were admissible, where no claim is advanced that fraud was practised upon the testator, every will might be reformed or
The equitable reversion, therefore, vested at her death in her sons as her next of kin, although by reason of the trust they never came into possession, and the share which each inherited passed by the provisions of their respective wills. Keating v. Smith, 5 Cush. 232, 235. Stearns v. Stearns, 192 Mass. 144" court="Mass." date_filed="1906-05-18" href="https://app.midpage.ai/document/stearns-v-stearns-6429452?utm_source=webapp" opinion_id="6429452">192 Mass. 144. Cushman v. Arnold, 185 Mass. 165" court="Mass." date_filed="1904-02-26" href="https://app.midpage.ai/document/cushman-v-arnold-6428455?utm_source=webapp" opinion_id="6428455">185 Mass. 165, 169.
It accordingly remains the duty of the trustee to divide the principal into two equal parts, and pay one part to the executor of the will of Charles H. Patch, and the other part to the executrix of the will of Fred C. Patch.
Decree of Probate Court affirmed.