Kuhn v. Webster

By the Court.

The court are of opinion that, under the will of Mary Rowe, Joseph Rowe took an estate for life, in trust to pay the legacies and annuities, with a power to dispose of the property; but this power was not executed, and the gift over took effect after the death of Joseph Rowe.

This gift took effect according to its terms, to the three nieces and the child of Mrs. Payson and the two children of Mrs. Webster, six persons, taking one sixth part each.

The property to which the above bequest extends was the real estate in Boston owned by Mary Rowe, the testatrix, at the date of the will, and the bank stock, the United States stock, and outstanding notes and mortgages which she had at the time of her decease, and the stock or securities, if any, in which this property had been invested by Joseph and actually subsisted in his hands at the time of his decease.

By force of Joseph Rowe’s will, the real estate in Boston, which he owned when he made the will, and the bank stock, United States stock, and outstanding notes and mortgages owned by him at. the time of his decease, had his sister Mary survived him, would have been a life estate in her, with power to dispose of it absolutely, and a remainder to the nieces and their children; but as Mary died in the lifetime of Joseph, the gift to her failed, and the gift over to the nieces and their children in six equal shares took effect immediately on the death of Joseph, in the same manner as if no intermediate particular estate had been created.

We are also of opinion that, as between the nieces and their children, the provision that in case all the children of either niece should die without having arrived at the age of twenty one years or been married, then their share should go to the other nieces, constituted gifts defeasible in case either should die without children or without having been married; so that the estate of each is contingent until the event,happens; and this rule extends to any niece who shall not have had any child.

Mrs. Webster having had a son who has arrived at the age of twenty one years and been married, her right and his cease to be contingent, and she and her son take estates absolute and subject to no contingency. Mrs. Payson’s share is contingent, subject to be defeated in case she should die before her daughter comes of age or is married. The shares of the minor daughters of Mrs. Webster and Mrs. Payson are contingent and defeasi ble in the event of their dying within age or unmarried. Mrs. White’s share is contingent, liable to be devested and go to her sisters in case she should die childless.

But Mrs. White and Mrs. Payson, who are entitled to shares contingent and liable to be defeated, in case of their dying without children, in favor of the gift over to the other nieces, are to have their shares respectively without security being required, subject however to the contingencies expressed in the will; and the shares of Miss Webster and Miss Payson are likewise to be paid to them immediately through their duly constituted guardians ; and upon the death of the last of the nieces the property will then go to legal representatives according to the terms of the will. Decree accordingly.