Dary v. Grau , 190 Mass. 482 ( 1906 )

Loring, J.

[After the foregoing statement of the case.] The contention of the appellants in the first appeal is that unless the gift over to “ my surviving sons or daughters ” is to be . construed to mean sons and daughters who survive the testatrix, there is an intestacy in the event which has happened, namely, the surviving life tenant’s dying without leaving issue. But in our opinion this gift over to surviving sons and daughters is a gift to the sons and daughters who survived the several life tenants as they respectively deceased, and that in the event now before us there is no intestacy.

Where there is a gift to children for life, and, as each child dies leaving issue, a gift of the share of the child so dying to the issue of that child, with a gift over to surviving sons and daughters of the testatrix if the life tenant dies without issue, the surviving sons and daughters are the sons and daughters who survive the life tenant who dies without issue. This is usually the meaning of these words. Lawrence v. Phillips, 186 Mass. 320, and cases cited. Of course it may be overcome by the context, as in Stone v. Bradlee, 183 Mass. 165, and other cases cited in Lawrence v. Phillips, 186 Mass. 320, 322. But there is nothing in the context here to overcome the ordinary meaning. In our opinion the gift over to “ my surviving sons or daughters ” means to my sons and daughters who survive the life tenant in question who dies without issue.

The argument of these appellants is that the last clause, “ and finally to be conveyed, divided and distributed among their issue as herein before provided,” does not dispose of the trust estate which is not disposed of by the previous provisions of the will, because there are in the event in question ex vi termini no surviving sons or daughters of the testatrix, and there is no previous gift to issue of surviving sons and daughters to whom “herein before provided ” can refer.

But this is too literal. It is true that there are in the event in question no surviving sons or daughters. But the gift is to the issue of the sons or daughters of the testatrix who, as they did or did not survive the several life tenants (their brother or sisters), did or did not take the shares of those life tenants who died without leaving issue. It also is true that there is no gift to such issue, but there is a previous provision as to the terms on which issue are to take, when issue take, and, in the gift here in question “ to their issue,” they are to take as it is “ herein before provided ” that issue are to take when issue take. The clause in question manifestly was inserted to cover the very contingency which is now before us. The testatrix gives the six parts of the residue put in trust to her son Josiah and his five sisters for life, with a gift over of each share to the issue of the life tenant in question on the decease of that life tenant if he leaves issue, followed by a gift over to all surviving brothers and sisters of the life tenant in case the life tenant dies without issue. Then follows the clause in question: “ Finally,” that is to say, as a final disposition of so much of the trust fund as does not pass under the above provisions, it is “to be conveyed, divided and distributed among their issue as herein before provided,” that is to say, it is to be conveyed, divided and distributed among the issue of my sons or daughters who, as they did or did not survive the several life tenants who died without issue, did or did not participate in the gift over of the share to the income of which that life tenant was entitled during his life; and these issue are to take as “ herein before provided,” that is to say, as it is hereinbefore provided that issue take when issue do take, namely, per stirpes and equally among the several stocks and among those constituting the stocks.

This brings us to the contention of the appellants in the second appeal, two of whom are daughters and the third a granddaughter of Mr. Atkins. Their contention is that if the phrase “surviving sons-or daughters” means neither surviving the testatrix nor surviving the last life tenant, it includes the issue of all the children of the testatrix, and among others the two daughters who successively married Mr. Atkins. In support of this argument these appellants urge that the general scheme of the will is equality and to construe this clause to exclude them here is not to treat them equally.

But it is agreed that both the daughters of the testatrix who married Mr. Atkins predeceased the testatrix, and although it is not specifically agreed that they were dead when the will was made less than two years before the testatrix died, yet from the fact that provision is made for these grandchildren and none for their mothers, we think that, if it is material, both must be taken to have been dead before the will was made, as well as before the testatrix died. The “ sons or daughters ” to whom “ their issue ” in the clause in question refers does not include the daughters who predeceased the testatrix, for those daughters could not have survived the several life tenants. The rest of the argument of these appellants is equally unfounded. The general scheme of the will is not to put these grandchildren on an equality with the other descendants of the testatrix. The testatrix had had ten children; eight were living, two were dead. The two who were dead were daughters who had successively married Mr. Atkins, and each daughter had left issue. Yet the residue was divided into nine, not into ten, parts, and one part was given to the issue of these two daughters. Again, in the gift over of the share of a life tenant dying without issue, the sons and daughters who survived the several life tenants took to the exclusion of the issue of the deceased brothers and sisters.

The third appeal is taken in behalf of minors and unascertained persons. The minors are great-grandchildren and great-great-grandchildren of the testatrix. The grandchildren of the testatrix, from whom they are descended, were all living at the death of the last life tenant. The decree of the Probate Court directed that the estate should be divided into four parts, one part for each of the children who died leaving issue, to be paid to the children then living of the sons or daughters of the testatrix who died leaving issue, and to the issue of such children who had died leaving issue. As we understand the contention of these appellants, it is that the four parts should be distributed, not to the immediate issue of the sons and daughters of the testatrix and their issue if dead, but should be distributed per capita among all living issue, including great-great-grandchildren of the testatrix whose grandparents, children of the sons and daughters of the testatrix, and whose parents are alive. In support of this contention these appellants at the oral argument cited Jackson v. Jackson, 153 Mass. 374. But the decree of the Probate Court with which these appellants are dissatisfied is supported by that case. See also Hall v. Hall, 140 Mass. 267; Dexter v. Inches, 147 Mass. 324.

Decree affirmed.