Cushing v. Burrell

Colburn, J. The bill in this case raises the question of the construction to be put upon certain provisions in the eighth clause of the will of Silas Peirce. That portion of this clause upon which the first question is raised is as follows: " They [the trustees] shall annually divide and distribute the residue of the net income of said trust property and estate, which shall remain after the foregoing provisions of this trust have been fulfilled, among my nephews and nieces in the first degree, in such proportions, not however exceeding five hundred dollars to any one in the same year, so long as the whole of said income may be distributed by giving no larger [24] sum to any one, however unequal, as my said trustees may deem expedient, so long as five of my said nephews and nieces shall survive.” If the words, “ however unequal, as my said trustees may deem expedient,” are transposed and read after the words “ in such proportions,” instead of where they stand, the meaning of the clause is more obvious. In an earlier part of the eighth clause, the testator has directed the trustees to pay, out of the income of the estate, annuities of $500 each to certain persons named, who are in fact his nephews and nieces in the first degree, but are not designated as such, except as being described as children of certain of his brothers and sisters. The question is presented, whether this fact affects the construction of that part of the eighth clause we have quoted. It will be noticed that, by the clause quoted, the testator is disposing of the residue of the income of the trust property which may remain after the specific provisions have been satisfied, and that this clause relates only to such residue. The language of the clause quoted includes all the nephews and nieces in the first degree, and makes no distinction between those to whom specific annuities have been given and the rest; and we find nothing to indicate that the testator did not intend, what his language imports, that those nephews and nieces to whom he had previously given specific annuities should share in the residue as if specific annuities had not been given them. We are of opinion that the clause quoted is to be construed as if no other provision had been made for any of the nephews or nieces; and that all the nephews and nieces in the first degree are entitled to share in the residue of the net income, in the manner specified in the clause quoted, regardless of the fact that some of them have received specific annuities under an earlier clause of the eighth section of the will. It may be added, that the trustees are not authorized to pay to any nephew or niece more than $500 from the residue, in any one year, until all the nephews and nieces have received that sum from the residue for that year. Under the provision at the end of the eighth clause, Nathan Cushing and Silas Pierce 2d are not entitled to specific annuities of $500 each, but only to share in the residue of the net [25] income. The specific annuities of $500 each are not given to nephews and nieces eo nomine. We are of opinion that the sum of $7755.70, which had accrued as income in the hands of the executors before payment to the trustees, is to be treated as income by the trustees. Lovering v. Minot, 9 Cush. 151. Sargent v. Sargent, 103 Mass. 297. Ayer v. Ayer, 128 Mass. 575. Pub. Sts. c. 136, § 24. More than five of the nephews and nieces in the first degree are still living, and we do not propose to consider the questions raised as to the final disposition of the trust estate, before the contingency happens which may render such consideration necessary. Decree accordingly.