Sherburne v. Sischo , 143 Mass. 439 ( 1887 )

Devens, J.

The question in this case arises on the residuary clause of the testator’s will. By this he bequeathed the residue of his estate to his nephews and nieces, “ in severalty, to share and share alike,” except William A. Foss, his brother Luther’s oldest son. One half of each portion was to be paid by the executors directly to them respectively, or their guardians when they were under age, and the other half of said portions was to form a trust fund for the benefit of said nephews and nieces, the income to be equally divided during their lives. The will then provides as follows : “ At the decease of either of the said nephews and nieces, I give and bequeath such one’s half portion and interest on the trust fund to his or her legal heirs ; and, at the decease of all my nephews and nieces, I give and bequeath the principal of said trust fund to their legal heirs, including William A. Foss’s heirs, my brother Luther’s oldest son.”

Lucy D. Sischo, one of the nieces, having died, her daughter Peninnah now seeks to have paid to her the share or the half portion held in trust primarily for the benefit of her mother, the trust fund contemplated by the will having been formed. If the husband of Lucy D. Sischo has any right in the fund, that right is expressly waived, and need not be considered. It is upon the claim made by Peninnah that the trustee, by this bill, seeks instructions.

But for the second of the two clauses above quoted, there could be no doubt that the first gave absolutely to the heirs of Buey D. Sischo, upon her decease, her half portion, as it is termed-in the will, with the right of present enjoyment. It is settled that, where an absolute estate is given by bequest or devise, in clear and apt words, this cannot be cut down to a less estate by subsequent words inconsistent therewith; and, such words being repugnant to the gift originally made, are treated as of no effect. Kelley v. Meins, 135 Mass. 231. The words of the second clause cannot be construed as indicating that, while the absolute estate in the half portion of each nephew and niece is given to their legal heirs upon their decease respectively, together with the income thereof, the actual division of the trust fund is to be postponed until the decease of the last of them. Even if this might have been done by appropriate words, such was not the object of the clause. The testator had excluded from the benefits of his will William A. Foss, one of his nephews, but the legal heirs of some of the nephews or nieces who were to take under his will might include heirs of William A. Foss. Awkwardly as it is expressed, this clause was intended to guard against any inference that, from the legal heirs of either nephew or niece, the legal heirs of William A. Foss were to be excluded. If, instead of “ all,” we read “ each ” or “ every one of,” in which sense the word is not infrequently, even if inaccurately, used, such intention would clearly be indicated. ISTor is it any serious objection to such a construction that the words “principal of the trust fund ” are used in the clause. These may properly be applied to the share or half portion of each nephew or niece included in the trust fund. The gift of the testator, as originally made, is “in severalty ” and “share and share alike” to his nephews and nieces, with the exclusion of William A. Foss, and each half portion of nephew or niece is treated as a distinct and individual property. In our view, the second clause does not cut down or diminish the gift made by the first. It repeats it for the purpose of indicating that, by anything which the will may have contained, he did not intend to exclude William A. Foss’s heirs from its benefits, if they were also heirs of either of the nephews or nieces.

It is suggested that the words “ such one’s half portion ” used in the first clause may refer to the half portion not in trust, and which might not have been paid to the first taker; and that the word “ interest ” is contrasted with “ principal,” and shows that the income only was to be paid until the decease of all the nephews and nieces, when the principal was to be distributed. But the words of gift, “such one’s half portion and interest on the trust fund,” can only be construed as referring to the half portion included in the trust fund, and the interest of the nephew and niece therein, although the word “ on ” is used and not the word “ in,” and as bequeathing such half portion and all interest therein to the legal heirs of the nephew or niece deceased.

The trustee should, therefore, be instructed that the half portion heretofore held in the trust fund for the benefit of Lucy D. Sischo should now be paid to her daughter.

So ordered.