Dole v. Keyes

Holmes, J. The limitation to the children of the testator’s children created a vested remainder, which opened and let in those born after the testator’s death. Weston v. Foster, 7 Met. [239] 297. Hatfield v. Sohier, 114 Mass. 48. Gibbens v. Gibbens, 140 Mass. 102. The inartificial use of the word “ revert ” no more obscures the plain meaning that the children are to take as purchasers, than “ descend to his legal heirs ” in White v. Woodberry, 9 Pick. 136,138, or “ inherit ” in Moore v. Weaver, 16 Gray, 305. The question whether the remainder is to be taken per capita or per stirpes is more difficult. The English rule is, that, when property is given to A. and B. as tenants in common, and, at their decease, to their children, the latter take per stirpes, the testator’s intent that the share of each tenant in common shall continue separate and go to his children being inferred from the fact that it will go over immediately upon his decease. Pery v. White, Cowp. 777, 781. Flinn v. Jenkins, 1 Coll. 365. Arrow v. Mellish, 1 DeG. & S. 355. Willes v. Douglas, 10 Beav. 47. Turner v. Whittaker, 23 Beav. 196. Wills v. Wills, L. R. 20 Eq. 342. Houghton v. Kendall, 7 Allen, 72, 77. Perhaps this court has gone further than the English courts would, in reading “ at their decease ” as meaning “ when all the life tenants shall have died,” rather than “ as they respectively die,” Loring v. Coolidge, 99 Mass. 191, 192, although in that case the limitation over was not to children of the life tenants. But, when this interpretation is adopted, the reason for the English rule ceases, because the whole fund goes over together, instead of in separate shares at different times. We are of opinion that the testator’s grandchildren take per capita, not only on the ground that the whole fund goes over together, but also because this remainder is evidently given in the same proportions as the remainder after the wife’s death, which is limited by the same clause, and, as the remaindermen’s parents take no interest in the latter, there can be no doubt that, if it stood alone, it would go per capita. Weston v. Foster, ubi supra. The presence of the latter limitation, and the slightly illiterate character of the will, make it more likely that the words “ at their decease ” were used in a popular rather than in a strictly logical sense, and thus enable us to apply the authority of Loring v. Coolidge with more confidence. And, conversely, the construction which we give to the words “ at their decease ” makes it more probable that the intention to be gathered from the limitation of the remainder after the wife’s death is the true [240] purport of the whole clause, rather than that for which there is some color in other portions of 'the clause taken by themselves. See further Ballard v. Ballard, 18 Pick. 41, 45. In Merriam v. Simonds, 121 Mass. 198, 208, there was an indication that the remainder was modelled on what the remaindermen would have taken in a representative capacity if the gift to the first takers had been absolute, for the remainder was to “ their children or their legal representatives,” and the decision went on the ground that legal representatives were mentioned. Decree„ affirmed.