Shreve v. Shreve , 176 Mass. 456 ( 1900 )

Hammond, J.

The testator was twice married, and at his decease he left surviving him a widow, Mary L. Shreve, and, as his only issue, Octavius B. Shreve, a son by his first wife, and Henry M. Shreve, a son by the said Mary, his second wife.

The general scheme of the will is that after the devise of “ the messuage on Chestnut Street ” to his son Octavius, the residue shall be held in trust, the income of one half to be paid to Octavius, and that of the other half to be paid to or for the benefit of the widow and her children; and the beneficiaries of one half have no interest in or control over the other half. This general purpose meets with no interference by the widow’s waiver, except so far as this residue is thereby diminished. The will is to be read as though there were no provisions for the widow.

Excluding her from the operation of the will, it is plain that during the minority of Henry the residue, as reduced by the amount taken by the widow under her waiver, is to be held in trust, the income of one half of which is to be paid to or for the use of Octavius, and that of the other half, which under the will was to be paid to the widow and Henry jointly, is to be paid to or for the use of Henry. Firth v. Denny, 2 Allen, 468. Plympton v. Plympton, 6 Allen, 178. Brandenburg v. Thorndike, 139 Mass. 102.

But the will provides that the income of the second half shall be paid, after Henry becomes of age, to him and the widow, not jointly, but in separate portions. Hence a different rule applies. The widow having waived "the provisions of the will, and the trust estate being thereby diminished by the amount required to' satisfy her claims, both Octavius and Henry are disappointed legatees.

The rule of law is, that if there be a devise for life with remainder over, and the life estate be renounced or it be void, the remainder is good and takes effect immediately. Shelley's case, 1 Co. 88 b, 101 a. Fuller v. Fuller, Cr. Eliz. 422, 423,

So far as respects Henry, he would be compensated by this doctrine of acceleration; and if no other devisees or legatees were affected, the result would be simply that upon arriving at his majority*he would receive not only the income given to him under the will, but also that given to the widow.

But it is manifest that this would not do justice to Octavius, the other disappointed legatee. His income also has been diminished by the act of the widow, and it is just that some portion of the legacy renounced by the widow should go to compensate him.

The legacy which the widow has renounced from which compensation is to be made is the income of one fourth of the residue from the time Henry reaches his majority until her death. Under these circumstances equity, by the great weight of authority, will sequester a portion of this income for the benefit of Octavius and his family. Firth v. Denny, 2 Allen, 468. Plympton v. Plympton, 6 Allen, 178. Timberlake v. Parish, 5 Dana, (Ky. 345. Hinkley v. House of Refuge, 40 Md. 461, 469. Latta v. Brown, 96 Tenn. 343. Jones v. Knappen, 63 Vt. 391. McReynolds v. Counts, 9 Grat. 242. Morriss v. Garland, 78 Va. 215. Dillon v. Parker, 1 Swanst. 359. Gretton v. Haward, 1 Swanst. 409. Batione’s estate, 136 Penn. St. 308. Story Eq. Jur. §§1083, 1084, and cases cited.

By the scheme of this will Octavius was to have" twice as much income as Henry during the life of the widow. By any diminution of the principal from which this income is derived, the income of the former, as compared with the latter, is diminished two dollars for one. Equity requires that his compensation from the fund renounced by the widow should be in the same ratio.

The result is that that part of the income which was renounced by the widow, accruing after Henry comes to his majority, namely, one fourth of the income of the estate, should be shared between Octavius and Henry in the ratio of two to one, so that the former shall receive two thirds and the latter one third of this income; and since the remaining income is divided in the same ratio, it follows that the whole income is to go, two thirds to Octavius and one third to Henry.

Decree accordingly.