Daniels v. Eldredge

Gray, C. J. By the provisions of the will, the trustees take the estate, real and personal, of the testator, (with power to change the investment of any portion thereof, and of the accretions thereon, from real to personal estate, a,nd from personal to real estate,) in trust to pay an annuity of $300 to the testator’s mother during her life, and, subject to this provision, to apply such portion of the income, as they may from time to time see fit, to the education and maintenance of the son until he .shall reach the age of twenty-five years, and then to convey the estate, with all accretions thereof, to him in fee; provided, that they may in their discretion convey the same or any part thereof to him at any time after his arriving at the age of twenty-one years. If the son dies before reaching the age of twenty-five years, leaving a widow and children, the trustees are to nay half the income to his widow, and to apply so much of the rest, aa [359] they may from time to time see fit, to the maintenance and education of his children, until the youngest child arrives at the age of twenty-one years, and then to convey the whole estate and all accretions thereof, in equal shares, in fee, to the survivors of the widow and children, and to the issue of any deceased child by right of representation; provided that the same, or any part thereof, concerning which the son shall have made a will after arriving at the age of twenty-one years, shall be disposed of as therein directed. If the son dies leaving no issue or widow, the trustees are to pay the income to the testator’s widow for life, and, after her death, convey the remainder in fee to brothers and sisters of the testator. By the effect of these provisions, the trustees took, in the first place, only an estate for the life of the testator’s mother, and an estate for years, determinable on the testator’s son’s attaining the age of twenty-five years, or on his death before that time; and the son took, after or subject to these estates for life and for years, an estate in fee. Doe v. Nicholls, 1 B. & C. 336 ; S. C. 2 D. & R. 480. Smithwick v. Jordan, 15 Mass. 113. It would seem that this estate of the son was a vested remainder immediately upon the death of the testator, though subject to be defeated by the death of the son before arriving at the age of twenty-five years. Goodtitle v. Whitby, 1 Burr. 228; S. C. 1 Kenyon, 506. Bromfield v. Crowder, 1 New Rep. 313. Doe v. Moore, 14 East, 601. Fox v. Fox, L. R. 19 Eq. 286. Doe v. Considine, 6 Wall. 458. Blanchard v. Blanchard, 1 Allen, 223. 4 Kent Com. 204. But if such estate of the son was in the nature of a contingent remainder, his interest in that contingent estate was vested, and capable of being alienated by him, and of passing by assignment in insolvency or bankruptcy; and this bill may therefore be maintained to apply to the payment of his debts his interest in the property, real and personal, so held in trust. Gardner v. Hooper, 3 Gray, 398. Pierce v. Lee, 9 Gray, 42. Nash v. Nash, 12 Allen, 345. Minot v. Tappan, 122 Mass. 535. Sparhawk v. Cloon, ante, 263 Demurrer overruled.