Inches v. Hill

Guay, J. The main purposes of this marriage settlement manifestly were to secure the income of the estate thereby settled to the wife, and after her death to the husband, and to give the remainder to the children of the marriage. By the terms of settlement, the three children, upon the death of their mother without having exercised the power of appointment therein reserved to her, took as tenants in common remainders in fee, vested in interest, though subject to the right of their father to receive the income during his life. This gift in fee is not to be cut down m qualified by subsequent provisions, unless they clearly manifest such an intent. Briggs v. Shaw, 9 Allen, 516. It was not defeated by the clause disposing of the estate in default of her issue, because her three children were all living at the time of her death; nor by the limitation over “ in case said Caroline shall decease and leave issue, but such issue shall die before attaining majority or day of marriage, then from and after the decease of said issue,” because that limitation, by the strict and natural construction of its words, and' by its evident intent, was not to take effect unless all her children died under age and unmarried, and in fact only one of them died unmarried and before coming of age. Upon the death of Mrs. Dehon, therefore, each of her children took an estate in fee in remainder in one third of the estate; upon the elder son’s dying of age and testate, his third passed by his will, one half to his sister and the other half to his brother, so [578] that each of them thru had an estate in fee in remainder in one half of the whole estate ; and upon the death of the younger son under age, his half went to his father as his heir, and passed by the father’s deed to the defendant Bacon. The life interest of the father having also been assigned by him to Bacon, and by Bacon to the daughter, the result is that the daughter, now Mrs. Hill, is entitled to the income during her father’s life of the whole, and to the fee in the principal of one half of the estate, and Bacon is entitled to the fee in the principal of the other half. The daughter desires that the trust should be terminated as to that half of the estate, of which she is absolutely entitled to both the income and the principal, and no reason appearing to the contrary, that half should be conveyed by the trustees to her in fee, discharged of the trust. Smith v. Harrington, 4 Allen, 566 Bowditeh, v. Andrew, 8 Allen, 339. Of the remaining half, the income is to be paid to her during her father’s life, and at hia • death the principal will go to Bacon, his heirs and assigns. Decree accordingly.