Merritt v. Converse , 123 Mass. 338 ( 1877 )

Colt, J.

By the will of James Gimmick, after certain other legacies and annuities are given, an annuity is provided for his son William for and during his natural life, to be paid out of the income of the estate. Following this provision, the eighth clause requires in substance a division of one half the residue, to be made among the children of William after the death of the latter, but not before his youngest child shall have attained the age of twenty-one years.

This clause, standing alone, although not concise or wholly accurate in all its language, is nevertheless clear and unambiguous as to the time when the contemplated distribution of the one half in question should be made. It is to be in any event not until after the death of William, and not then unless the youngest child has reached the age named.

It is argued that the language of the clause in question is controlled by subsequent provisions, showing an intention that this half of the estate should be divided at all events, when all the children had become of age. The provisions referred to require a similar distribution of the remaining half among the children, when the youngest attains the age of thirty years, with an additional clause providing that if the children shall have made bad use of the money previously paid over to them under the will, then the estate, or so much of it as may be necessary for their benefit and support, shall be kept in trust for them. The distribution of this half of the residue, it is also declared, shall not be made until after the death of William, but shall be kept for the purpose of paying the annuity to William out of the income, and if necessary out of the principal.

It is to be inferred that the testator anticipated two different distributions of the residue. In the expectation that William, in the ordinary course of events, would not live until his youngest child should be thirty years of age, he naturally supposed there woqld be a period of greater or less duration before the distribution of the last half, in which the capacity and disposition of the children to take care of the property given them in the first distribution would become manifest. There is nothing to indicate that this period of probation must necessarily extend over the whole time required for the youngest to reach the age of thirty. That depends on the life of William, and the plan of the testator in this regard may yet be substantially carried out. It may be that by the unexpected duration of his life-, the estate may all come to be divided at one and the same time;,and the plan for probation, and for leaving the whole or part of. the last half for the protection of devisees who may turn out improvident, may be thereby defeated.

But these considerations are not enough to defeat an express and positive provision, by which no part of the estate is to be divided while the son lives. The fact that the testate! did not foresee all the consequences of his disposition of the estate is no reason for disregarding an unambiguous provision, or for supplying, substituting or rejecting words by intendment, so as to change its meaning. There is no absolute repugnance in the provisions of this will to justify such a construction. Butterfield v. Hamant, 105 Mass. 338. Carpenter v. Heard, 14 Pick. 449. Hunt v. Hunt, 11 Met. 88. Bill dismissed.