Stone v. Bradlee , 183 Mass. 165 ( 1903 )

Knowltow, C. J.

By the twelfth clause of the will of Josiah Bradlee, one sixth part of the residue of his estate, after making certain payments, was to go to trustees, whose successors are the present plaintiffs, to be held in trust, to pay the net income quarterly to his daughter Lucy Hall Shober during her life. A further provision is as follows: “ Upon the decease of my said daughter, if she leaves children, such income shall be paid to such children, in equal shares, during their respective lives, and as such children shall successively decease, said sixth part of the residue and remainder of my estate, shall be distributed to and among their lineal descendants, in fee simple, according to the right of representation.

“But if my said daughter shall die without children or lineal descendants, I direct said trustees to dispose of said sixth part, of the residue and remainder of my estate, among my surviving children, as follows, viz said Frederic Hall and James Bowdoin shall each take one part thereof, in fee simple; and said trustees shall hold one part, for my son Henry, and one part for each of my surviving daughters, for the use of my son and daughters, during their respective lives, upon the trusts declared in this will, for my said son and daughters, respectively.”

The testator had three sons and three daughters. One sixth part of the residue is given in like manner to each of his other children, like trusts being created for the shares given to the other daughters, and a similar, but not identical trust for the share given to his son Henry, while the shares of his sons Frederic Hall and James Bowdoin were given to them absolutely, without the intervention of trustees. All of these children of the testator are now deceased, and none of the daughters ever had children. All the sons left issue who still survive. The share in question in this case is the one sixth part which was held for Mrs. Shober, who was the last of the family to die.

The first question is, What is the nature of the estate which Mrs. Shober took? That depends upon the time when, by the terms of the will, her estate would end and the remainder, vest in possession. Apart from qualifying provisions, if the event which would determine her estate was an indefinite failure of issue at any time after her death, she would take an estate tail in the real estate, and an absolute estate in the personal property ; for a title in the nature of an estate tail in personal property is greater than a life estate, and the law treats it as an absolute ownership. Goddard v. Whitney, 140 Mass. 92, 101. If, on the other hand, she bad only a life estate, and if the event which was to give the remainder to her brothers and sisters was a definite failure of issue at her death, that event has occurred, and the last part of the above quoted provision is applicable. While, apart from recent statutes, the words “ die without issue ” mean an indefinite failure of issue if there is nothing else in the will to throw light on their meaning, that meaning is not given them if it seems inconsistent with the purpose which the testator has indicated in other parts of his will. Indeed, so often has this meaning done violence to the real intention of testators that both in this State and in England statutes have been passed providing that such language shall be held to relate to conditions existing at the time of the death of the first taker. R. L. c. 134, § 5. St. 7 Wm. IV. & 1 Vict. c. 26, § 29. Slight indications have often been held to be enough to show that a definite failure of issue is meant. The question always is, What was the intention of the testator ? Whitcomb v. Taylor, 122 Mass. 243, 249. Richardson v. Noyes, 2 Mass. 56, 63. Hall v. Priest, 6 Gray, 18, 22. Sewall v. Roberts, 115 Mass. 262, 274. Pratt v. Alger, 136 Mass. 550, 551. Wilson v. O’Connell, 147 Mass. 17, 19. Welch v. Brimmer, 169 Mass. 204, 211. Barney v. Arnold, 15 R. I. 78, 80. Pells v. Brown, 1 Cro. Jac. 590. Trotter v. Oswald, 1 Cox, 317. Porter v. Bradley, 3 T. R. 143.

In this will we find indications that a definite failure of issue was intended. The gift over is expressly in the alternative, and the first alternative is “ upon the decease of my said daughter, if she leaves children,” and the second alternative is, “if my said daughter shall die without children or lineal descendants.” If children alone were referred to in each alternative, there would be no possibility of doubt that the time which would determine the existence or failure of issue would be at the death of Mrs. Shober. The first alternative plainly relates to the time of her death, and the antithetical use of the two alternatives, in reference to the same subject, indicates that the second alternative relates to the same time. The probability of this intention is emphasized by the fact that the youngest of the testator’s married daughters was fifty-three years of age when the will was made, and their having children could not have been contemplated by the testator otherwise than as a remote possibility.

Another fact is important, namely, that the gift over after the death of Mrs. Shober is, as to the testator’s other daughters, a life estate only, and the improbability that such a life estate would ever take effect after an indefinite failure of issue tends to show that a definite failure was meant. Ide v. Ide, 5 Mass. 500, 503. Drury v. Negro Grace, 2 H. & J. 356, 359.

In this connection the fourteenth clause of the will becomes important. It is as follows: “ It is my will, that my daughters shall take no part of my estate, in fee simple (except the legacies of twenty thousand dollars, to Mrs. Dodd & Mrs. Shober) but that at the decease of the last survivor of them, the whole of the legacies in trust in this will, for the benefit of my said daughters, which shall then be in the hands of said trustees, except such parts thereof (if any) which the children or lineal descendants of my daughters, may be entitled to, shall be equally divided between my sons, the shares of my two eldest sons in fee simple, and the share of said Henry in trust, for his life, with remainder in fee simple, to his children.” This provision, which we consider an explanation of the testator’s previously stated meaning, is inconsistent with the creation of an estate tail in the daughters, and is a plain indication that the rights of remaindermen are to be determined as of the time of the daughters’ deaths.

The next question is, What is meant by the words “ my surviving children” in the last paragraph of the twelfth clause. The testator defined them when he mentioned his three sons by name and his daughters generally in providing that two of the sons should have their shares in fee simple, and the third son and his surviving daughters, through trustees. Construing the twelfth clause in connection with the fourteenth clause, it is difficult, in reference to the sons who are named, to interpret the words “ surviving children ” as meaning anything else than children surviving at the time of his death, and if that is their meaning in reference to his sons, it is the same in reference to the daughters also. Minot v. Taylor, 129 Mass. 160. Weston v. Weston, 125 Mass. 268, 270. That surviving children means those surviving at the testator’s death is fully shown by the fact that in the fourteenth clause of the will, after the death of the survivor of his daughters, her share is given to his sons by name. There is certainly no good reason for believing that the word “ surviving” is used in different senses in its application to the daughters and its application to the sons. We therefore hold that the interests of the testator’s children in the contingent remainders, limited to take effect in default of issue, became vested immediately upon his death.

That part of the previous limitation which gives the shares to the lineal descendants of the testator’s grandchildren in case Mrs. Shober should decease leaving children, is void under the rule against perpetuities; but as the limitation in the following paragraph is an alternative one and not dependent upon the first, it makes no difference with the rights of the parties under present conditions. Jackson v. Phillips, 14 Allen, 539, 572. Seaver v. Fitzgerald, 141 Mass. 401, 403.

Mrs. Shober was the survivor of the three daughters, and as the limitation over to daughters was only for their lives, the shares of the other two lapsed by their death in her lifetime. The three sons are, therefore, the only takers. Frederic Hall Bradlee and James Bowdoin Bradlee were to take their shares in fee simple after the expiration of the life estate. The share of Henry was to be for his use during his life, upon the trusts declared in this will. We are of opinion that this provision brings this share under the trust created for him in the tenth clause, which gives him the income for life and gives his widow the income for life of one third of the fund after his decease, and gives the residue and remainder in fee to his children. This is the construction which has been put upon the will, with the consent of all parties, in the distribution of the shares on the decease of the other two daughters. The fourteenth clause is in conformity with this construction, unless it should be held that the last provision in it, which gives the share of Henry “in trust, for his life, "with remainder in fee simple, to his children,” was intended to change the effect of the twelfth clause in case his widow survived the last of his sisters, and to cut her off from the life estate in one third which would be given her by the tenth clause. The meaning in this particular is doubtful, but we are of opinion that this clause wTas intended to be merely declaratory of the previously expressed intention, and to make it plain that the limitations over were to take effect on the death of the daughters, and that the daughters were in no event to have any other than life estates. We think that the provision in this clause for Henry was intended to be the same as in the twelfth clause, and to adopt all the provisions of the trust for him, created in the tenth clause. .

We think it plain that the executor under Mrs. Shober’s will is entitled to the income which accrued between the time of the last quarterly payment and Mrs. Shoher’s death. The gift of income to her was absolute, unless it should be more than she should think it necessary to receive. In the absence of anything to show that she thought it more than she needed, it all belongs to her. R. L. c. 141, § 25. Williams v. Bradley, 3 Allen, 270.

It follows that the interlocutory decree should be affirmed in all particulars, except as to the one third part which is to be held under the trust for Henry Bradlee. That is to be disposed of according to the provisions of the tenth clause in the will, subject to a determination hereafter of the rights of claimants under Dudley H. Bradlee.

So ordered.