Rhodes v. Rhodes , 1884 Mass. LEXIS 267 ( 1884 )

C. Allen, J.

Upon looking at all the provisions of this will, it appears that the testatrix intended that each of her three sons should take as nearly as possible an equal share in her estate, with this exception, that the share of her son Charles should be held in trust for his support and benefit during his life, with a right in him to dispose of the property after his death, by will or otherwise, in case of his dying with either wife or children, but with a devise over to the other two sons in case he should die without either wife or children. We cannot think that the devise over was to take effect either in case he died without a wife, or in case he died without children, as is contended by the plaintiff. In point of fact, he had a wife, who survived him; so that the contingency did not happen which took away his right of disposition; and we need not consider what would have been the result if his wife had died before him. See 2 Jarm. Wills (5th Am. ed. by Bigelow) 198.

There was no implied gift to his wife or children; but the inference is irresistible that the testatrix meant to give to him the right of disposition, subject to be defeated in the contingency named. She did not mean to leave any intestate property; or to give the share of Charles to her other two sons, except in case of the death of Charles without wife or children; or to give it directly to the wife or children of Charles; 1 Jarm. Wills, 563; but she did intend, and it was her most earnest wish, that each of her three sons should share alike, with the exception mentioned. There is no legal difficulty in the way of carrying out this intention; Bunn v. Sargent, 101 Mass. 336; and this construction of the will is like that given in other cases which bear a considerable resemblance to the present. Cropton v. Davies, L. R. 4 C. P. 159. Dowling v. Dowling, L. R. 1 Ch. 612. Judgment affirmed.