Goddard v. Whitney

Deyens, J. The will concerning which instructions are asked has been once before this court. Goddard v. May, 109 Mass. 468. William D. Goddard having died during the lifetime of his father, it was necessary then to determine whether the legacies of principal and income of the share directed to be set apart for him had lapsed by his death without issue and intes - tote in the lifetime of the testator, there being in that event an unconditional gift over. It was there decided that the words “ his share,” and “ his portion,” found in the will, referred to the share of the estate set apart for him, but did not show any intent to make the vesting of an interest in him a condition of — 97 — the gift over; that the sixth clause was not inserted with a view to the limitation over; and that the share of William D. Goddard should be retained undivided, except for the purpose of distributing the income to the surviving brother and sisters, until the expiration, of five years from the testator’s death, during which time the principal of the estate was to remain undivided. It was further said that, when the distribution shall take place, one third of this share will be added to each of the shares of the brother and sisters. When this decision was made, the five years had not expired, and it was not necessary to decide, nor was it by this language decided, whether the portion of the estate coming to Mrs. Whitney by reason of the death of her brother should be taken by her absolutely, or whether it should be added to the trust estate created on her behalf and that of her children, and be thus held and administered. The fourth clause, which relates to the disposition of the income, provides that Mrs. Whitney’s share, in case of her death, together with all that may have accrued, is to be paid to her daughters, whom it names. The fifth clause places her share of the principal in trust, and provides for the division of it between her daughters at her decease, the income being paid to them during life. The sixth directs that, if either child shall decease during the five years, that portion of his estate bequeathed to such child “ shall be added ” in equal shares to the portions of such of my immediate children who may be living at the expiration of the “ five years aforesaid.” The fourth and fifth clauses show fully an intention that the husband shall not participate in the income or principal of the estate which Mrs. Whitney received. By the sixth clause, if the death of William D. Goddard had occurred after that of his father, as such share of his interest as Mrs. Whitney might have received was to be added, by the terms of the clause, to her portion, this addition would have been to the portion described in the fifth clause, which was a portion in trust. By the first clause, also, had Mrs. Whitney died subsequently to the death of her mother, such share as she might have received from her mother’s estate would not have been received absolutely, but added to that portion which was held in trust. The language, that, at the mother’s death, her said — 98 — estate shall he divided equally among her immediate surviving children, according to the provisions hereinafter named with regard to their portions of the rest of my estate,” allows no other interpretation. When, therefore, the testator, in the fifth clause, referring to the portion of William D. Goddard, and to the contingency of his dying intestate and without issue, provides “that his said portion of my estate shall be equally divided among his immediate surviving brother and sisters,” the intention of the testator, revealed throughout the will, compels us to hold that this division is to be made by addition to the portions elsewhere given to such surviving children, and upon the same terms as those upon which such portions are given. Where a testator, in the entire structure of his will, has revealed an intention, the language of individual clauses is always to be construed with reference to that intention, even if, in another instance or another connection, it might properly receive a different construction. Weston v. Weston, 125 Mass. 268. Metcalf v. Framingham Parish, 128 Mass. 370, 374. Bradlee v. Andrews, 137 Mass. 50. Assuming that the property derived from the share of William D. Goddard is to be added to and form a part of the share of Mrs. Whitney, we are to consider what disposition is now to be made of it, and who is entitled thereto, Mrs. Whitney having deceased after the expiration of the five years, and her daughter, Mrs. Allen (spoken of in the will as Eleanor G. Whitney), having died subsequently to the decease of her mother, leaving herself a daughter, Eleanor G. Allen. Mrs. Allen’s husband, Thomas Allen, was also living at her decease, and is still living. The part of the fifth clause relating to the final disposition of the trust property held for the benefit of Mrs. Whitney during her life, and of which she was to have the income, provides that at her death “her said portion of my estate shall be equally divided between her two children, Annie Louisa Field and Eleanor G. Whitney, the same to be held in trust for them by the said Josiah Bard well, and the income thereof to he paid them semiannually during their life; and should either or both of the said children decease without legal issue, then it is my will that the said portion of my estate above bequeathed to such child or — 99 — children shall he divided in equal shares among my immediate surviving children.” This clause certainly attempts to provide for all contingencies, and to make a complete disposition of the portion of the testator’s estate appropriated to Mrs. Whitney. The final vesting of personal property (and Mrs. Whitney’s portion consisted both of personal and real estate) may, by means of an express trust, be postponed, as in executory devises of real estate; and there can be no objection, if the ultimate disposition of the property is not postponed, in any contingency, for a period beyond lives in being, and twenty-one years thereafter. Sears v. Russell, 8 Gray, 86. Fosdick v. Fosdick, 6 Allen, 41. Loring v. Blake, 98 Mass. 253. Otis v. McLellan, 13 Allen, 339. Hooper v. Bradbury, 133 Mass. 303. Mrs. Whitney had only an equitable estate for life. She had no power to say who should take after her, and those who were thus to take are distinctly named. Had there been, at the time the will became operative, other children, or had there been such subsequently born, they could have had no benefit under this clause. The rights of Mrs. Field and Mrs. Allen are directly derived from the will, and they take thereunder as purchasers. The remaining questions raised by the bill for instructions will be determined by considering what was the character of the estate taken by the two daughters of Mrs. Whitney, respectively. Did they have equitable estates for life only in the trust property, or such estates of inheritance therein that, when Eleanor G. Whitney (Mrs. Allen) deceased leaving lawful issue, the trust was terminated as to one half the property, and is such portion now to be treated as her intestate property, to be disposed of according to the rules of descent and distribution ? The language of the will immediately relating to this point we have already quoted. Although a contingency existed, on the occurrence of which there was a devise over of the property, the expressions which show that the two granddaughters are to take more than equitable estates for life in the trust property are very strong. Thus, it is provided that Mrs. Whitney’s share “ shall be equally divided” between them, and the trust property is spoken of as “ above bequeathed to such child or children.” — 100 — The rule of the common law, that, in a deed or conveyance inter vivas, the omission of the words “ heirs or assigns indicates an intention to convey only a life estate, does not ordinarily apply to devises. Our statute also has provided that “ every devise shall be construed to convey all the estate which the testator could lawfully devise in the lands mentioned, unless it clearly appears by the will that ho intended to convey a less estate.” Pub. Sts. c. 127, § 24. Gleason v. Fayerweather, 4 Gray, 348. While, in terms, the testator provides for the death of his granddaughters without issue, by the bequest of this portion in such case to his immediate surviving children, he does not expressly provide for the contingency which has occurred, namely, the death of one of them leaving issue. But that which the testator gave is not to be construed as less than an estate of inheritance, because in a certain contingency it might be determined. The devise over, in case either of the granddaughters dies without legal issue, necessarily implies that, if she die leaving issue, an estate of inheritance is devised to her. If the clause by which it was ordered that the estate should be equally divided between the two granddaughters, the income being paid to each for life, could otherwise be construed as giving only an estate for life, the effect of the limitation over to her legal issue would be to enlarge it. Hayward v. Howe, 12 Gray, 49. Parker v. Parker, 5 Met. 134. It is contended that the manifest purpose of the testator was not merely to prevent the husband of Mrs. Whitney, but also the husband of either of her daughters, from any participation in his estate, and to keep it in his immediate family. If so, he has certainly failed to express such pui-pose, as it is only in case of “ decease without issue ” that he has shown any intention that the share bequeathed to either of his granddaughters named shall be disposed of by a devise over to his then surviving children. Mrs. Allen’s share was indeed to be kept in trust during her lifetime, but this is not inconsistent with holding that she was equitably the owner of the property. Trusts are subject to' the same rules of descent, and are deemed capable of the same limitations, as legal estates. Whatever would be deemed the rule of law if it were a legal estate, is applied in equity to a trust estate. Burgess v. Wheate, 1 W. Bl. 123, 160. Loring v. Eliot, 16 — 101 — Gray, 568. Although the rule in Shelley’s case is not in force in this State, the words used in the devise do not operate to make the issue of Mrs. Allen purchasers under the will, but only to enlarge the estate conferred on her. Hayward v. Howe, ubi supra. We do not perceive that the case as now presented requires us to determine whether the words “ decease without issue ” refer to an indefinite or to a definite failure of issue, — a question often difficult to decide in the construction of wills. In either case the result is the same, so far as the present disposition of the property, which consists of both personalty and realty, is concerned. If the words are construed as meaning a definite failure of issue, while the ultimate limitation was a valid devise at the decease of Mrs. Allen, the contingency upon which it depends has not occurred, and cannot occur. Hooper v. Bradbury, ubi supra. The property is to be treated as her intestate property. The personalty will pass to her administrator, and, by the law which prevailed at the time of the decease of Mrs. Allen, the husband will be entitled to the whole thereof, after payment of debts and expenses. Pub. Sts. c. 135, § 3, cl. 3. In the real estate he will be entitled to his tenancy by the curtesy. If the words “ decease without issue ’’ are construed as meaning an indefinite failure of issue, the ultimate limitation over would be void as to the personalty, Mrs. Allen would take a complete equitable title thereto, and it would now pass to her administrator. In the realty she would take an equitable estate tail, of which her daughter would now be the tenant, and the devise over would be of a remainder after an estate tail. Allen v. Ashley School Fund, 102 Mass. 262. Hall v. Priest, 6 Gray, 18. Albee v. Carpenter, 12 Cush. 382. But an estate tail being one of inheritance, and the wife having been seised, the husband is entitled to his curtesy therein. Pub. Sts. c. 124, § 1. Co. Lit. 30 a. 2 Bl. Com. 126. Loring v. Eliot, 16 Gray, 573. Decree accordingly.