Bailey v. Smith , 214 Mass. 114 ( 1913 )

Brailey, J.

By the fifteenth or residuary clause of her will, Franklin Smith and William J. Smith, the brothers of the testatrix, each took an equitable life estate in one half of the net income of the trust estate, and upon the death of one, the other surviving, the heirs of the deceased brother were to succeed to his share until the death of the surviving brother, whereupon the net income was to be equally divided between their six children, who are specifically named, or their representatives, until the death of the last surviving child. By the first clause of the first codicil, the provisions of clause fifteen were modified in so far as they related to the division of income. It was provided, that if the deceased brother left a widow she was to receive annually from the net income a certain sum, and the remainder only was to be distributed among his heirs. A radical change as to the disposition of the principal upon the death of the widow of either brother is found in the second clause of this codicil. But, although both brothers are dead, each left a widow who is still surviving, and, the time for a division of any part of the principal not having arrived, the trustees are entitled to be instructed only as to the present disposition of income. Peabody v. Tyszkiewicz, 191 Mass. 317.

The period during which the heirs of a deceased brother were to enjoy his one half of the income, even if prolonged by the provisions for his widow where one died leaving the other brother living, has ceased to be operative, because, both brothers having deceased, the distribution thereafter, during the joint lives of the widows as provided in the codicil, must be in six equal parts as directed in the fifteenth clause.

The nieces and nephews were all living at the death of the testatrix, and each took a vested interest in the income subject to the outstanding life estates and the annuities charged upon income. Cushman v. Arnold, 185 Mass. 165,168,169. Peabody v. Tyszkiewicz, 191 Mass. 317, 321. Ball v. Holland, 189 Mass. 369, 373. It is sufficiently manifest from the context of the will, that by the use of the words, “or their representatives,” when spealdng of the death of a nephew or niece before the trust as to income should terminate under the fifteenth clause, the testatrix meant those who would take as their heirs under our statutes of descent and distribution, and not their executors or administrators. Bates, petitioner, 159 Mass. 252. Olney v. Lovering, 167 Mass. 446. Upon the death of Helen I. Meade, a daughter of William, the trustees had in their hands accumulated income due her which should be paid to the administrator with the will annexed of her estate, but, as this share passed to the heirs at law, the income subsequently accruing is payable to her husband, Charles J. Meade, and to her mother, Sarah P. Smith, in the proportions designated in the R. L. cc. 133, 140. Olney v. Lovering, 167 Mass. 446. Gray v. Whittemore, 192 Mass. 367. Brandeis v. Atkins, 204 Mass. 471.

It appears, however, that she and her brother William Pleis Smith received one quarter each instead of one sixth, and the trustees should be authorized to retain so much of the future income coming to those shares as will reimburse them for the over-payments. Hammond v. Hammond, 169 Mass. 82.

What we have said as to the rights of the heirs of Helen applies as well to the distributees of the estate of Howard Smith, a son of Franklin, who died in another jurisdiction without leaving issue, and whose widow, Alice C. Smith, has appeared and filed an answer admitting the allegations of the bill, although she is not represented by counsel.

The appellant Sarah P. Smith is not entitled as.the executrix of the will of William J. Smith to share in the income. His interest therein terminated with his death, and as his widow, she is entitled from income only to the annuity during her life, as well as her proportionate part of the one sixth inherited from her daughter.

The decree of the Probate Court having been in accordance with the views expressed, it should be affirmed. Whether the allowances made to counsel for the appellants to be taxed on the fund should have been for a larger amount, rested in the sound discretion of that court, which does not appear to have been arbitrarily or unjustly exercised.

Decree accordingly.