169 Mass. 204 | Mass. | 1897
The will of Martin Brimmer, Senior, which we are asked to construe, was executed on July 31, 1840. He was born on June 8, 1793, and had been married, but his wife died on January 1,1833, and he never married again. He died on or about April 25, 1847. Martin Brimmer, Junior, was his only child, and was about seventeen years old at the time of his father’s death, and must have been about ten years old when the will was made. He died testate on January 14,1896, never having had issue, and leaving a widow. The testator, Martin Brimmer, Senior, had a sister who survived him, and is the Eliza Oliver mentioned in the will. She died on December 11, 1859, and we infer that she never was married. At the time of the testator’s death there were eight children of his deceased sister, Susan Inches. It is nowhere stated in the papers before us - when Susan Inches died, or when her children were born; but as the will was made not quite seven years before the death of the testator, it is manifest that some of the children of Susan Inches were alive when the will was made. There is no reference to Susan Inches or to her children in the will.. The son, the unmarried sister, and the children of Mrs. Inches, so far as we are informed, were the only near relations of the testator who survived him, and there is nothing before us which shows that they were not his only near relations when the will was made.
By the first paragraph of the will, the testator gave the income and produce of one full moiety of his estate, real, personal, or mixed, to his son, and directed that so much thereof as was necessary to afford the son a suitable maintenance and a liberal education should from time to time during his minority
If we disregard for the present the words in the proviso “ or such issue shall decease during minority,” the effect of the whole paragraph is, we think, to give to the son on his reaching the age of twenty-three years, not only the possession of this moiety of the estate with its accumulations, but the ownership of it, such ownership to be determined in the event of the son thereafter dying leaving no issue surviving him with an executory devise over of the real property, and an executory bequest in the nature of an executory devise of the personal property to the sister Eliza Oliver Brimmer, if she be living at the time of the son’s death, but if she be not then living, then “to the person or persons who shall be my heir or heirs at law.” Schmaunz v. Göss, 132 Mass. 141. Hooper v. Bradbury, 133 Mass. 303.
By the second paragraph of the will, the testator first gave
We think that this proviso has substantially the same meaning as the proviso in the first paragraph. There is in it no express direction that the son, if he survived the sister of the testator and reached the age of twenty-three years, should be put into possession of this moiety, but that perhaps would follow from the fact that the son is given the ownership of this moiety if he shall be living at the time of the death of the sister. See Hooper v. Bradbury, ubi supra.
In the second paragraph, if the son dies before the sister, then the moiety is given to the son’s issue. In the first paragraph there is no express gift to the issue of the son. Disregarding for the present the words in the proviso of the second paragraph, “ or at the decease of his issue during minority,” we
What is the effect of the words contained in each proviso, namely, “or at the decease of his issue during minority ”? We have said that there is no express gift of anything to the issue of the son in the first paragraph. In the second paragraph the moiety is not given to the son and his issue, but on the decease of the sister of the testator to the son if then living, or to his issue if the son shall have deceased. Under this clause, if the son were then dead, his issue living at the death of the sister would have taken the property in fee. It is contended that the effect of the words in the proviso of the first paragraph, “ that in case my said son shall die having no issue him surviving, or such issue shall decease during minority,” and of the words in the proviso of the second paragraph,' “ in case of the decease of my said son without issue, or such issue shall not attain majority,” is that the son took an estate tail in each moiety. Hooper v. Bradbury, ubi supra. The reversion or remainder in real property expectant upon the determination of an estate tail is a vested remainder, which can be devised, but a limitation of real property by way of executory devise which may possibly not take effect until after the determination of an estate tail is void as too remote. It is not, however, necessary to- determine what the effect of these clauses would be if they stood alone, and if an estate tail had previously been given to the son. The second contingency contemplated has become inoperative by reason of the happening of the first contingency, and it is immaterial whether the second contingency is one on which an executory devise could or could not lawfully be limited. The
The present case is one where at the time when the will was made the son was the sole heir presumptive, and if he survived the testator would be the sole heir. If the testator married again and had children, this would have revoked the will; but there is nothing in the will indicating that the testator contemplated the possibility of marrying again and having children. If the son died in the lifetime of the testator, the provision for the son in the will never would take effect. The testator may be presumed to have known that, in order that the provision for his son should take effect, his son must survive him, and that the son, if he survived him, would be his sole heir. When a life estate is given to one, and the remainder on his death to the heirs at law of the testator, and the life tenant is one of these heirs, this fact alone has been held not sufficient to take the case out of the general rule that the heirs at law of the testator are to be determined as of the time of his death, unless it plainly appears from other provisions of the will that the testator’s intention was that they should be determined as of some other time. But when the person to whom the property is given for life is sole heir presumptive of the testator at the time when the
When an estate in fee is given to a person who is the sole heir presumptive of the testator when the will is made, and will be the sole heir if he survives the testator, but on such person surviving the testator and dying without leaving issue surviving him, the estate is given over by way of executory devise to the heirs of the testator, it is said in argument that there is no case in England or in this country in which such person has been held to take the executory devise as heir. Doe v. Frost, 3 B. & Ald. 546. See Lees v. Massey, 3 DeG., F. & J. 113; Sears v. Russell, 8 Gray, 86. It is argued that it is absurd to suppose from such indefinite language that a testator intended to give to an only child — a son, for example — real estate in fee if he sur
The repeated use by the testator of the word “ shall ” in the-proviso of the first paragraph, and the concluding clause of it, that, “ if the said Eliza O. shall not then be living, I give said estate, with its accumulations, to the person or persons who shall be my heir or heirs at law,” in which the word “ then ” relates to the time of the death of the son, tend to confirm the conclusion that the testator must have intended his heir or heirs living at the time of the death of his son. We attach slight significance to the use of the word “ heir,” as well as “ heirs.” For these reasons a majority of the court are of opinion that the heirs intended by the testator are the issue of Susan Inches, living at the time of the death of Martin Brimmer, Junior, who would have taken the real estate of the testator if he had then died intestate.
Is the widow of Martin Brimmer, Junior, entitled to dower ? “ A wife shall be entitled to her dower at common law in the lands of her deceased husband.” Pub. Sts. c. 124, § 3. The plaintiff is the trustee appointed by the Probate Court in place of Edward D. Sohier, deceased, trustee under a resolve of the Legislature, approved April 19,1862. Acts and Resolves, 1862, Res. c. 48. By that resolve Edward D. Sohier was authorized to sell certain parcels of real estate of which Martin Brimmer,
By the bill it appeal’s that Martin Brimmer, Junior, married Marianne Timmens, May 23,1860, and died on January 14,1896, leaving Marianne surviving him. By the agreed facts, filed November 9, 1896, it appears that Martin Brimmer, Junior, left a will dated December 28, 1895, which was duly probated on February 27, 1896, and which contained certain provisions for his wife; and that she has not waived the provisions for her contained in the will. The bill in this case was filed March 23, 1896, which was within six.months of the probate of the will. A copy of this will has been furnished us, although it is not included in the papers which are brought before us by the reservation. It is argued that, by not waiving the provisions of her husband’s will, her claim to have dower or its equivalent out of
There should be a decree that the heirs of Martin Brimmer, Senior, living at the time of the death of Martin Brimmer, Junior, are entitled to the property as if Martin Brimmer, Senior, had then died intestate. Whether the widow of Martin Brimmer, Junior, if she make claim, is entitled to dower or what is equivalent to dower in the property, unless she is barred of it by the acceptance by her of the provisions of'her husband’s will in her favor, or by her failure seasonably to waive these provisions, and whether she has been thus barred, must be determined hereafter, either in this or some other proceeding. The decree must be without prejudice to such a claim, and the details of it may be settled by a single justice. Whether