Dove v. Johnson , 141 Mass. 287 ( 1886 )

Holmes, J.

The last sentence of the eighth clause of the will plainly means that the whole trust fund is to be kept together, and no part of the principal distributed, until the death of the survivor of the testator’s daughters.

It is no less plainly one purpose of the eighth clause to dispose of the whole income up to the moment of distribution, and, when this purpose will be effected and a partial intestacy avoided by reading the words in their natural sense, we must not be deterred by the conjecture that some remote consequences were not in the testator’s mind, or might not have been quite satisfactory to him, if he had thought of them.

A majority of the court are of opinion that, if the words are read in their natural sense, the direction to pay the income of “ the remaining five sixths (or other portion, whatever the same may be),” after taking out George’s share, quarter-yearly or oftener, “ to all my daughters in equal shares,” is a gift to the daughters as a class; and that, in the event which has happened, of the death of a daughter unmarried, the survivors take the whole income. It is very plain that George was not intended to have any part of the income of this “ other portion,” as he would have if there were held to be any intestacy as to the deceased daughter’s share. The provision that “the issue of any deceased daughter shall take the mother’s share,” whatever its scope, raises no difficulty, but simply makes a sub-class of such issue, and puts them in place of their mother. See Hall v. Hall, 140 Mass. 267. If it has any effect, it is to show that it is assumed that the share would go over but for such provision. The words “ in equal shares ” do not affect the question.' They simply determine the proportions in which the income is to be divided. See Loring v. Coolidge, 99 Mass. 191; Jackson v. Roberts, 14 Gray, 546, 551; Dow v. Doyle, 103 Mass. 489. It is true that the event which has happened is not specifically provided for, but, upon our interpretation, it was not necessary to provide for it specifically.

It is objected that, if the deceased daughter’s share of the income goes to the other daughters, the equality which the testator seems to have desired is not preserved. Especially it is said that, so far as the testator expressed himself, he showed a disposition to give George at least as large a share as his sisters ; that his share of the income will be less than theirs; and that, if this is not a sufficient reason for declaring a partial intestacy as to the deceased daughter’s share, so as to let in George, it is one for holding her representatives entitled, and thus preserving the equality. But, as we have intimated already, we cannot carry the testator’s disposition further by conjecture than it is expressed, and then, in order to satisfy the wish which we have 1 imagined, give words a different meaning from that which they would have had otherwise. A slight temporary inequality caused by the secondary division of one share must be regarded as an accident which the testator did not provide against, perhaps because he did not think it worth while.

It follows, of course, from what we have said, that we find no reason, in the disposition made of the income, for disappointing the testator’s expressed wishes, and ordering any part of the principal to be distributed now.

Decree accordingly.