Goddard v. May , 109 Mass. 468 ( 1872 )

Wells, J.

The legacies of income and principal, of the share directed to be set apart for William D. Goddard, did not lapse by bis death without issue and intestate, in the lifetime of the testator ; because there was an unconditional gift over, to take effect in that event. Prescott v. Prescott, 7 Met. 141. Carpenter v. Heard, 14 Pick. 449. It is contended that the expressions “his said share ” and “ his said portion ” indicate that the gift over referred only to estate upon which the will had taken effect, so as to vest an interest in William D. Goddard; and therefore, as William D. died before the testator, there was no such estate, upon which the gift over could operate.

But we think the language properly defines, and was intended to refer to the share or portion of the testator’s estate, which, by the same paragraph of the -mill, he had directed to be set apart and held for William D. Goddard; and it is called “ his share ” and “ his portion ” for that reason, and not from any intent to make the vesting of an interest in William D. Goddard a condition of the gift over.

It is also contended that the sixth clause restricts the limitation over; making it depend upon the contingency of death of the first taker, after the death of the testator, and within five years.

Conceding, for the purposes of the argument, that such would be the interpretation of that clause, if the gift over depended upon that alone, yet we think it is manifest from the whole will that such was not the intent of the testator. Indeed we incline to the opinion that the sixth clause was not inserted at all with reference to the condition of the limitation over. That had already been explicitly defined. The testator may have supposed that the trust provided for, and the disposition of the income during five years, required this express provision to secure their accomplishment, and prevent a division of the principal fund. Whatever may have been the purpose which induced its insertion, we do not think it is necessarily inconsistent with the terms of the limitations, as previously made ; nor that it was intended to control or restrict them.

The gift over is to “ immediate surviving brothers and sisters.” We do not understand that it is denied that this excludes the widow and the issue of deceased brothers and sisters. The whole structure of the will, and especially the direction in the sixth clause, as to the mode of disposing of the share of either of the four children of the testator, if it should fall in or become divisible during the five years after his death, indicate cross remainders between those four, so limited as to take effect only in survivors.

The claim of the widow is not properly represented here, as she joins in the bill as plaintiff, instead of answering to it as defendant. We suppose it to be that the share of William D. Goddard has lapsed and fallen into the residue, and thus enlarged her share. But this ground we think is untenable.

The purposes of the trust for the residue, as well as the directions of the sixth clause, require that the share of William D. should be retained undivided, except for the purposes of distributing the income to the brother and sisters, until the expiration of five years from the testator’s death; when the distribution of the principal will take place, one third of this share being added to each of the shares of his brother and sisters.

Instructions accordingly.