Pool v. Ward , 38 Mass. 398 ( 1838 )

Wilde J.

drew up the opinion of the Court. By the rules of law as laid down in Dingley v. Dingley, 5 Mass. R. 535, the real estate devised to the grandchildren vested in those who were living on the decease of the testator, and afterwards opened to let in the two children born afterwards. And as to the personal estate, the remainder was contingent; because there can be no remainder of a chattel, which may vest and afterwards open to let in after-born children. These questions, however, are not raised in the present suit. The trustee has no right or interest in the estate devised, except during the lives of Ward Pool and his wife and the survivor. And the question is, how the income of the estate during that time shall be divided. This depends on the construction of the will, as to which we think there can be no reasonable doubt. The trustee is directed to appropriate an annual sum, not exceeding $ 500, towards the support of Ward Pool and his wife, and the residue he is to account for with the grandchildren and their guardian. It is not expressly said that he shall account annually, but that we think was the obvious intention of the testator. The residue must be understood the residue of the annual income, which might be received, each and every year, during the continuance of the trust; and was intended, no doubt, for the support and education of the minor children. The trustee, therefore, is bound to account with the grandchildren in esse from year to year, without regard to the vesting of the remainder devised to the grandchildren.

As to the prayer for an allowance for maintenance, it is only stated in the bill conditionally, in case the Court should hold that the trustee is not bound to account with the plaintiff and the other grandchildren annually. If, however, we had so held, it is very clear that no such allowance could be made, even if the Court had jurisdiction.

Judgment for the plaintiff.