Wheeler v. Chase , 282 Mass. 147 ( 1933 )

Pierce, J.

This is an appeal from a decree of the Probate Court for the county of Suffolk upon a petition for instructions, filed by Frederick Loring Wheeler, trustee under the will of Lemuel A. Cooledge. The issue on this appeal is confined to paragraph numbered 5 in said decree which involves a judicial construction of art. Eighth of the will. The case was heard on an “Agreed Statement of Facts,” which discloses that the testator died August 21, 1891, survived by a widow “and five children, to wit: — William C. Cooledge, Lemuel A. Cooledge, Jr., Matilda G. Cooledge, Martha J. Chase, and Lucy J. Wheeler.” The widow died in 1894. William C. Cooledge died in February, 1895, unmarried and without issue surviving him. Lemuel A. Cool-edge, junior, died September 11, 1909, unmarried and without issue surviving him. Matilda G. Cooledge died September 12, 1931, unmarried and without issue surviving her. Martha J. Chase died October 28, 1910, leaving as her only issue surviving her, two children, William Cool-edge Chase, one of the respondents, and Mary Chase Reed. Mary Chase Reed died in April, 1931, leaving her husband Edgar M. Reed, and as her only surviving issue, Edgar M. Reed, junior, one of the respondents who is represented by his guardian ad litem in this proceeding. Lucy J. Wheeler died in July, 1913, leaving as her only surviving issue Frederick Loring Wheeler, one of the respondents. At the death of Matilda G. Cooledge, last surviving child of the testator, on September 12, 1931, there were two grandchildren of the testator living, Frederick Loring Wheeler and William Cooledge Chase. Frederick Loring Wheeler has no living children or grandchildren. William Cooledge Chase has four children living, three of whom are of full age, the minor child being William C. Chase, junior, represented by his guardian ad litem, the appellant, in this proceeding. The annuitants named in the fourth and fifth articles of the will are all deceased except Addie Wiggin, called Addie E. Wiggin in the petition for instructions. Said Addie E. Wiggin is one of the respondents.

The appellant alleges that he is aggrieved by paragraph numbered 5 of the decree of the Probate Court which decides “That Frederick Loring Wheeler, a grandchild of the testator, is entitled to a fife estate in one third of seven eighths of the rest, residue and remainder of the estate, and William Cooledge Chase, a grandchild of the testator, a life estate in one third of seven eighths of the rest, residue and remainder of the estate. That Edgar M. Reed, junior, a great-grandchild of the testator, is entitled to a fee in one third of seven eighths of the said rest, residue and remainder of the estate,” and contends that paragraph 5 of the decree of the Probate Court is in error for the reason that, upon a correct construction of article eighth of the will, Frederick Loring Wheeler is entitled to a fife estate in one half of seven eighths of the rest, residue and remainder of the estate and William Cooledge Chase is entitled to a life estate in one half of seven eighths of the rest, residue and remainder of the estate, with contingent remainders in fee over in each case.

After making in the seventh article of the will provision for all his children during their lives, except for Lemuel A. Cooledge, junior, who was provided for during his life by the second article of the will, the testator provided in art. Eighth of the will for the disposition of seven eighths of the rest, residue and remainder of his property among his grandchildren and great-grandchildren as follows: “In case my last mentioned children or either of them hereafter marry and have children or child, the fruit of such subsequent marriage or marriages living at the decease of the longest survivor of my said last mentioned children, or in case said Martha J. has children or child the fruit of her present marriage living as aforesaid I give, bequeath and devise seven eighths of all the rest, residue and remainder of my property and estate of every Kind and description, real, personal and mixed, wherever situate, to my grandchildren — except as may be hereinafter provided — living at the decease of the longest survivor of nay said four last mentioned children, in equal shares or proportions, share and share alike, and to the heirs of grandchildren or grandchild the fruit of present or subsequent marriages as aforesaid, forever.”

The respondent Edgar M. Reed, junior, whose mother Mary Chase Reed, predeceased the survivor of the testator’s children, contends that the phrase “and to the heirs of grandchildren or grandchild the fruit of present or subsequent marriages as aforesaid, forever,” in the eighth paragraph of the will, manifests when read in the light of the entire will the intention of the testator that seven eighths of the residue of his property was to be given for life in equal shares to his grandchildren living at the decease of his last surviving child with contingent remainder in fee to their children and to the children or issue of any deceased grandchildren or grandchild equally. In support of this position he contends that the quoted words are to be construed as words of purchase and not of limitation, that the word “children” or “child” used in the first part of art. Eighth and in subsequent articles, particularly art. Twelfth, should be interpreted as meaning “issue” and this includes the lineal descendants of the testator; that is, that the testator when he used the word “children” or “child” in the several articles of the will intended that the children or issue of a deceased grandchild should take as a designated legatee or devisee as the case might be.

The appellant, William C. Chase, junior, contends that the dominant intention of the testator manifested by the language used was to make a contingent gift for life to such of his grandchildren as should survive the longest liver of four of his named children; that the contingent gift to the grandchild surviving the specified event was a gift of life estate with contingent remainders in fee to the surviving children or child of the members of said class; that the word “children” or “child” as used by the testator throughout the will cannot by any proper rule of construction be interpreted to include great-grandchildren or great-grandchild, and be given its ordinary meaning; and makes the further contention that the phrase “heirs of grandchildren or grandchild the fruit of present or subsequent marriages as aforesaid” cannot be construed otherwise than as a gift of a contingent remainder in fee to the great-grandchildren or great-grandchild of the testator who survives grandchildren or grandchild entitled to share in the contingent life estates.

The appellant concedes that the right of Edgar M. Reed, junior, to a contingent remainder in fee must stand or fall upon the interpretation given to the clause, “and to the heirs of grandchildren or grandchild the fruit of present or subsequent marriages as aforesaid, forever,” or upon the construction applied to the word “children” or “child” appearing in the first part of art. Eighth or in subsequent articles of the will. All interested parties concede that the testator intended to make contingent gifts for fife to such of his grandchildren as should be living at the decease of the longest survivor of his four named children, with contingent remainders in fee over to the children of the grandchild whose parents survived the longest liver of the children of the testator. The sole issue is whether a child of a grandchild who predeceased the longest survivor of the four children of the testator is entitled to share equally in the distribution occurring at the death of such survivor with the children of the grandchild who did survive the longest survivor of the four children of the testator.

The appellee contends that the dominant purpose of the testator as shown by the entire will was to make provisions for all his lineal heirs, and that this intention embraced the child or children of grandchild or of grandchildren who had predeceased the last surviving child of the testator. The entire will discloses that the dominant intention of the testator was to provide for all his lineal descendants who could be provided for without violation of the rule against perpetuities. Art. Eighth of the will should not be construed to show a less broad intention unless its provisions unmistakably require such result. We think the provisions of article eighth do not limit the gifts of contingent remainders to the children of the grandchildren who were living at the death of the longest survivor of the four children of the testator, but included children, if any there might be, of grandchildren who predeceased the survivor under the words of purchase and not of limitation, which read: “and to the heirs of grandchildren or grandchild the fruit of present or subsequent marriages as aforesaid.”

The conclusion is that the decree of the Probate Court should be affirmed.

Decree accordingly.