Moore v. Weaver , 82 Mass. 305 ( 1860 )

Bigelow, C. J.

By the will of Hannah Martin, her daughter took a life estate only in the real estate of which the testatrix died seised, and the remainder vested in fee simple in the daughter’s children. The devise comes within the provisions of the Rev. Sts. c. 59, § 9. Richardson v. Wheatland, 7 Met. 169. Weld v. Williams, 13 Met. 486. The power conferred on the tenant for life to dispose of the estate by will did not affect the nature of the estate which passed to her children. This power not having been exercised, their estate took effect absolutely secundum formam doni. It was defeasible only on an event which did not take place. The case does not raise the question whether the remainder vested at the death of the testatrix, or was contingent until the death of the tenant for life. If the devise had been to “ the heirs ” of the first taker, its construction would have been open to grave doubt. Richardson v. Wheatland, ubi supra. But by the gift of the remainder to the children of her daughter, with a distinct declaration that “ all her children ” are to take, a clear intent is manifested to create a vested remainder in those born after as well as before her death. To carry into effect such intent the remainder must be held to be capable of opening to admit afterborn children. Bowers v. Porter, 4 Pick. 198. By virtue of the Rev. Sts. c. 62, § 24, the issue of the daughter’s son by her first marriage, who died before the testatrix, took his share. Our opinion of the construction and effect of this devise accords with that given to it by the supreme court of Rhode Island in Moore v. Dimond, 5 R. I. 121. Exceptions overruled.