Boston Safe Deposit & Trust Co. v. Wall

Morton, J.

This will was before us for construction in Shattuck v. Balcom, 170 Mass. 245. The question in that case related to the disposition to be made after her death of the income given to Mrs. Balcom during her life, and we had to reconcile in the best way that we could certain conflicting provisions in items 18 and 20. It was there held that after the death of Mrs. Balcom the income payable to her during life went to and was to be divided equally amongst the children of Mrs. Balcom, George F. Wall, and James H. Wall, Jr. We adhere to the result, which was arrived at in that case on the question there presented. Since that decision James H. Wall, Jr. has died testate, leaving a widow and two children surviving him. During his lifetime, by an instrument dated December 24, 1894, he assigned to Mr. Thompson his interest in the income bequeathed to him by item 18 in his father’s will. The question now is, who is entitled, and in what proportions, to the income that was payable to him under said item during his life.

In Shattuck v. Balcom, ubi supra, in construing the words in item 18, “ the child or children of either of them deceased, to receive the portion which would have belonged to said deceased child, saving and excepting the child or children of Emma Isabella Connell,” a certain construction was suggested, and discarded in favor of what then seemed a better one, which, on further consideration and in view of the questions now raised, we are inclined to adopt. .The construction thus suggested was that these words might be limited to the child or children of George F. Wall and James H. Wall, Jr. The effect of such a construction will be to read into item 18, in addition to the express exception in regard to Mrs. Connell’s children, an exception in regard to Mrs. Balcom’s children. But since the testator has provided in item 20, as we have already held in Shattuek v. Balcom, for the division after her death of the share of the income which Mrs. Balcom would receive during her life amongst the children of Mrs. Balcom, George F. Wall, and James H. Wall, Jr., the provision in item 18 cannot be considered as applying to Mrs. Balcom’s child or children. Mrs. Connell’s cliil-' dren are expressly excepted, and the same provision is made in item 21 in regard to the disposition after her death of the share of the income which she would receive during her life under item 18 as is made in the case of Mrs. Balcom. But no provision is made after their deaths in regard to the shares of the income which George F. and James H. Wall are to receive except what is contained in item 18, and it seems to us now that the words “ the child or children of either of them deceased” in that item must be limited to the child or children of George F. and James H. Wall. Although this construction will favor the children of the sons at the expense of Mrs. Balcom’s daughter during the lives of the testator’s children, it will not disturb the, equality of the final distribution, and it seems to us to be more in harmony with the testator’s intention than it would be to hold that his children took estates pur autre vie in the income terminable on the death of the last survivor. The construction which we now adopt will not affect the result in Shattueh v. Baleom, and seems to us more natural than the one to which we then inclined, and to reconcile in a more satisfactory manner the conflict between items 18 and 20.

Decree of Prolate Court affirmed.