Jewett v. Jewett , 200 Mass. 310 ( 1908 )

Sheldon, J.

The petitioner holds a trust fund created under the will of Elizabeth Howes. She died in 1859, leaving two daughters and a son, all of whom have now died without issue. The last survivor of these children of Elizabeth Howes was Susan B. Cabot, who died in 1907.

Mrs. Howes by her will gave to her son one fourth of all the residue of her estate. The other three fourths she gave to trustees, with provisions that the income should be paid primarily to her daughters, but, in certain events, in part to her son and in part to the descendants, if any, of her daughters, until the decease of the last survivor of her daughters. The will then provided, in the fifth paragraph of the second article, that the trustees should “ on the decease of the last survivor of my said daughters . . . convey, assign, deliver and distribute the whole remaining trust property to the then surviving descendants of my said children respectively, the share to the descendants of each of my said daughters to be equal to that of the descendants of each other of them, and the share of the then surviving descendants of all of my said children to be in the same proportion in which they would at the time be entitled to share in the rents, interest and income of the trust property, and in case of there then being no surviving descendants of any of my said children, then the trust property is to go to my heirs and in either case the trust is to cease.” The trust fund is now to be paid to her heirs, and the question is whether those heirs are to be determined at the time of her own decease, or at the time of the death of Mrs. Cabot, the last survivor of her children. In the latter event, the fund would go to certain cousins or other collateral kindred of the testatrix. In the former event, her heirs were her son and two daughters; and, as Mrs. Cabot acquired in her lifetime the whole interest of her brother and sister by their wills, the whole fund would now be paid to the administrators of her estate with the will annexed.

As was said by this court in Whall v. Converse, 146 Mass. 345, 348, “ The general rule is settled, that, in case of an ultimate limitation like that of the fund in question to the testator’s heirs at law, the persons to take are those who answer the description at the time of the testator’s death. Dove v. Torr, 128 Mass. 38, 40. Minot v. Tappan, 122 Mass. 535, 537. Abbott v. Bradstreet, 3 Allen, 587. The reasons for this rule are, that the words cannot be used properly to designate anybody else; that such a mode of ascertaining the beneficiary implies that the testator has exhausted his specific wishes by the previous limitations, and is content thereafter to let the law take its course; and, perhaps, that the law leans toward a construction which vests the interest at the earliest moment.” The same rule often since has been re-stated by this court. Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70. Gray v. Whittemore, 192 Mass. 367, 380. Holmes v. Holmes, 194 Mass. 552, 557. Blodgett v. Stowell, 189 Mass. 142, 143. International Trust Co. v. Williams, 183 Mass. 173. Pierce v. Knight, 182 Mass. 72. Rotch v. Rotch, 173 Mass. 125. It is needless to refer to the many other cases that might be cited to the proposition.

It is true, however, that this principle “ is not a rule of substantive law, but a rule of interpretation which has been adopted by thé courts as one means of ascertaining the intention of the testator as expressed in his will, and it never should be used to defeat what from the whole will appears with reasonable certainty to have been his intention.” Heard v. Read, 169 Mass. 216, 223. That intention is to be ascertained from the language of the whole will in view of all the circumstances of the case, and is to be followed unless it is. inconsistent with the rules of law. McCurdy v. McCallum, 186 Mass. 464, 469. Crapo v. Price, 190 Mass. 317, 320. Accordingly, in many cases a limitation to the heirs of a testator or of a beneficiary after the termination of a life estate which is prolonged beyond the period of his own life has been construed as requiring the heirs to be determined at the date of the termination of the subsequent life estate, because it was found that otherwise an intention which the testator had clearly manifested would be frustrated. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, in which the doctrine is stated with sufficient citation of cases. But we do not find in Mrs. Howes’s will any manifestation of such an intent.

The fact that her heirs at her death were her children, that an absolute bequest was made to her son, and that life estates were given to her daughters, does not indicate an intention that these same children should not finally take as her heirs after the termination of the special limitations which she chose to make. Childs v. Russell, 11 Met. 16. Abbott v. Bradstreet, 3 Allen, 587. Cushman v. Arnold, 185 Mass. 165. Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70.

Nor can we say that this testatrix did not intend that her children should not have power to dispose of their respective interests in remainder, because her husband by his will had expressly given such a power to the survivor of his children, and she did not make a similar provision, and it may be inferred that she was acquainted with the contents of her husband’s will.

The careful provision that the share of the income of the trust fund which was to be paid to her daughters or to their female descendants should be paid to them or for their benefit independently of their husbands does not warrant the inference that she wished to deprive her daughters of any interest in remainder lest they should exercise their unrestricted power of disposition by bequeathing it to their husbands. The testatrix imposed such restrictions as she chose ; we cannot reverse the ordinary rule, expressmn facit cessare taciturn, and infer that she intended to impose additional restrictions which she did not mention.

We have carefully considered all the suggestions made in the elaborate arguments, and have examined all the cases to which we have been referred; and we find nothing in the will of the testatrix which discloses any intent to benefit her collateral relatives. We are of opinion that having, as in Rotch v. Rotch, 173 Mass. 125, 133, made provision for each of her daughters during all her life and for her issue if she should leave any, and having secured to her son what she regarded as an adequate portion for him, she was content, if her children should leave no issue, to let her estate go as the law might direct.

Accordingly the petitioner should be instructed that it is his duty to pay the trust fund to the administrators with the will annexed of the estate of Susan B. Cabot.

Decree accordingly.