Darling v. Blanchard , 109 Mass. 176 ( 1872 )

Mobtoít, J.

Benjamin Binney by the seventh clause of his will gave and devised one fifth of his real and personal estate to his son Matthew, in trust to pay the income to his daughter Mary during her life, and at and upon her decease “ to convey the said fifth part to her children, share and share alike; and if any of them at that time be dead and leave issue, the issue shall be entitled to have the parent’s share only.” Upon established rules of construction and upon the authorities, we are of opinion that the children of Mary took a vested remainder on the decease of the testator. It is a settled rule that a remainder will not be construed to be contingent, which may, consistently with the intention of the testator, be deemed vested. Blanchard v. Blanchard, 1 Allen, 223. Pike v. Stephenson, 99 Mass. 188. We find nothing in this will which shows an intention of the testator to postpone the vesting of the estates in the children of Mary until the death of their mother. The devise over is to all her children, and not to such as may be living at her decease. Nothing but the death of the children will prevent the remainder from vesting in possession. The direction that the trustee at the death of Mary is “ to convey the said fifth part to her children ” is entirely consistent with an intention to postpone the possession merely and not the vesting. It is a natural expression to use, when the remainder vested immediately, but the legal title is in a trustee until the period to which the possession is postponed. The other portions of the will confirm this view. It is clear from the whole will that it was the intention of the testator to divide his property equally between his five children; and at the close of the seventh clause is this provision: “ Furthermore, I intend and direct that this will shall pass all the estate, real and personal, which I shall possess or be entitled to at my decease, whether I now own or shall hereafter acquire the same.” The construction of the will claimed by the heirs at law would defeat the clear intention of the testator. White v. Curtis, 12 Gray, 54. Pike v. Stephenson and Blanchard v. Blanchard, ubi supra, and cases cited. We are of opinion therefore that the remainder vested in the two children of Mary at the death of the testator, and as they both died unmarried and without issue, it descended to her and she could dispose of it by will; and that the trustee should convey the estate in his hands to the persons entitled to it under the will of said Mary.

Decree accordingly.