Spencer v. Adams ( 1912 )

Morton, J.

This is a petition by the trustee under the will of Jesse Holbrook, late of Boston, for instructions as to the construction of “Article Seventh” of said will, which is as follows:

“After my deceas, I give in Trust to Henry F. Spencer all the property I own at Grayes Ferrey Road in the City of Philadelphia, Eighteen Houses on Oakford Street and Eleven houses on Latona Street and Seven Houses on Thirty first Street and all the vacant Land adjoining said Estates, with power to sell any and all of the property as he may think best and reinvest the funds in good securities. After all the bills for repairs and taxes are paid, said Trustee, will pay to my son Charles B. Holbrook out of the rents the sum of one hundred dollars per month during his life, and not to any one else, at his deth all this property is to be equally devided between my surviving children & his daughter Florance W. Holbrook.” The will was drawn by the testator himself. Charles Holbrook has died and the questions are, whom did the testator mean by the words “my surviving children,” and is the property to be distributed per capita between the surviving children and Florence or one half to the surviving children and the other half to Florence. There is also a question as to the division of income which has accumulated from the trust estate.

We are of opinion that by “my surviving children” is meant children surviving at the testator’s death. That the testator had his own death in mind as the time to which the survivorship related is shown, we think, by the words “after my deceas” with which the article begins. That distinguishes this case from Coveny v. McLaughlin, 148 Mass. 576, relied on by the children who survived at the death of Charles. A construction which limited the surviving children to those living at the death of Charles would cut off the children of those who died before Charles and would interfere with the scheme of general equality amongst his children which the testator evidently intended and which he was at some pains to work out in the previous article of the will, as appears'when that article is considered in connection with the agreed facts. If the testator’s death is the point of time, as we think it is, as of which the survivorship is to be determined, then taking the words “my surviving children” literally, Charles would be included. But we think that the more reasonable construction is that the testator intended to limit his bounty so far as Charles was concerned to the provision which he made for him during his life, and to give to Charles’s daughter, who Was his only surviving child, the share which Charles otherwise would have had in the remainder. As to Charles there was a reason for this, as shown by the agreed facts, in the manner in which he had managed the Philadelphia property, and as to the daughter, the testator may well have deemed that he was carrying out in the main his scheme of equality by putting her in her father’s place in the final division.

We see nothing in the will or in the agreed facts to warrant the construction that in the final division one half is to go to the surviving children and the other half to Florence Holbrook. The words “my surviving children” include all the children who survive, and signify and describe in connection with the words “and Florence Holbrook” those amongst whom the division is to be made. Florence Holbrook shares with the surviving children and in a sense as one of them. A construction which would give her one half and the surviving children the other half would do violence to the testator’s manifest intention to divide his property equally. There is no significance in the fact that the word “between” is used and not “amongst.” As used here “between” has the sense of “amongst.”

The words “all this property” in the article include the property with its accumulations.

The result is that the property is to be conveyed to and divided equally amongst the testator’s children, except Charles, who were living at the testator’s death and Florence Holbrook, per capita, and their heirs and assigns.

Decree accordingly.