Miller v. . McBlain

Danforth, J. The important question raised by the demurrer was whether Mary Hudson, at the time of the death of the wife of the testator, took an absolute interest in the estate devised, or whether, on her dying without issue, her share went to the plaintiff, as the survivor of the children of the testator. So far the defendant has succeeded, because in the opinion of both courts,'Mary Hudson, having survived the life tenant, was entitled to the share absolutely. It seems obvious that a differ *522 ent construction would not only suspend the absolute vesting of the gift during the whole life of the legatee, but could be reached only by disregarding the expressed intention of the testator. His words are plain enough. By the second clause of the will his estate is to be kept together for the enjoyment of his wife until her death, and by the third clause, upon the happening of that event, whatever may remain is to be disposed of, not contingently, but “ absolutely and wholly.” There is to be a division at that time into parts corresponding to the number of his children, and one part or share is at once given or devised to each child, and, providing against an event which might occur before the death of the life tenant, and therefore, before the period of distribution, the testator directs by a subsequent clause (12), that if any of his-children should die without issue, his or her part “ should be divided between the survivors and their heirs in equal proportions.” We can find in these words no other intention than that expressed by the testator, that the division or distribution should then, at least, be effective and final, hi or is any expectation disclosed on his-part, that on account of a subsequent event — the death of a child without issue — the estate shall be divested, or that there shall be an accounting by its representatives in regard to the share taken, or that it be distributed among such children as survivors, or, as in this case, to the one surviving. We think it clear that the words of survivorship relate to the expiration of the life estate, and the period of distribution. It follows, therefore, that the death of Mary Hudson, without issue, vested no estate in the plaintiff, and as the complaint states no other right or cause of action, the demurrer was well taken, and the judgment appealed from should be affirmed. All concur. Judgment affirmed.