Howland v. Howland , 77 Mass. 469 ( 1860 )

Shaw, C. J.

1. The court are of opinion that the gift of $5000 for afterborn children indefinitely cannot be earned into effect, because inconsistent with the general intent of the will. It must therefore be limited to a period at which the residue becomes formed, and is, by the general intent of the will, to be distributed. The two intents; 1st. To keep the estate open indefinitely; and, 2d. That the testator’s own children shall enjoy the residue in their lifetime; are incompatible, and one must yield. The intent that the children shall enjoy as soon as the residue shall be formed is the leading intent. This might be, and actually is, at the expiration of one year, when debts are supposed to be paid, and the executors are to settle the estate.

Another period for the formation of the residue might be fixed, either by express provision, or as necessarily resulting from other provisions of the will. The intent of the testator is to be carried into effect as far as it can be done, and should be observed and respected as far as it can be, when it cannot be fully carried into effect. Here it might be when the first after-born child was born, because then and upon that contingency a further sum of $5000 was to be paid, and then there must be a distribution. It appears that no such settlement and distribution was then made. But when the bill was brought, the bar to any further suit or claim was absolute, as the statute of limitations had taken effect, and no debt could then be proved. To extend the formation of such residue to the time at which an afterborn grandchild could be born would be inconsistent with the principal intent of the testator. It therefore must be limited. The court are of opinion that the time of the filing of this bill is fhe proper time for considering the term closed which excludes afterborn grandchildren; and that the grandchildren born after that time, or to be born hereafter, must necessarily be excluded.

2. The next question arises upon the right of Parsons, the husband of one of the daughters, to the share of one of his children, who has died since the testator. Until the death of his wife, the trustees might elect to pay over to her, or to her children. After her decease that power of election ceased, and the duty became absolute to pay to the children as a class. The power did not extend to the selecting of particular children of the class. After the death of the mother, the equitable legacy became vested in the four children in aliquot parts. The four children then took one quarter each.

But they took subject to this power of the trustees to withhold from either who should become intemperate or dissolute, of which the trustees were to judge. This was a condition subsequent, upon the happening of which the vested gift would cease and become void. One of the children died at four years old, before he could become intemperate, and the vested gift became absolute. This equitable interest descended, and his father, as the next of kin and heir at law and distributee of his infant son, took it by operation of law.

Decree accordingly.