O'Rourke v. Beard

Holmes, J. This is a real action. The demandant claims title under a sale in due form by trustees having an express power to sell under the will of one who died seised of the premises. The only ground on which the validity of the sale is denied is that the trust is invalid. It is enough for us to say that we perceive no ground for doubting that the trust is valid. The trust is of the testator’s “ entire estate, whether real, personal, or mixed, . . . for the benefit of my three children [naming them] or their heirs.” There is no uncertainty, in the sense of Olliffe v. Wells, 130 Mass. 221, cited for the tenant, although there might be a doubt as to the proper construction which it is not necessary for us to resolve. In some cases, especially of devises of land, “or” has been read “ and,” so as to make “ heirs ” a word of limitation. Read v. Snell, 2 Atk. 642, 645. Wright v. Wright, 1 Ves. Sen. 409. Harris v. Davis, 1 Collyer, 416, 423. Lachlan v. Reynolds, 9 Hare, 796, 798. Greenway v. Greenway, 2 DeG., F. & J. 128, 139. Adshead v. Willetts, 29 Beav. 358. A more likely construction, since words of inheritance are not now necessary in order to carry the absolute interest, is that [11] “ or ” makes a substituted gift, as is provided by the Pub. Sts. c. 127, § 23, in case either of the testator’s children should die before him, and as has been held in England with regard to gifts of personalty or of real and personal estate together. Grittings v. M'Dermott, 2 Myl. & K. 69, 75. Wingfield v. Wingfield, 9 Ch. D. 658. Keay v. Boulton, 25 Ch. D. 212. See Hall v. Hall, 140 Mass. 267, 270. Probably the time of substitution is the testator’s death, so that any child who survived him took an absolute title. Montagu v. Nucella, 1 Russ. 165, 170, 171. Salisbury v. Petty, 3 Hare, 86, 93. Whitcher v. Penley, 9 Beav. 477. We do not suppose that the counsel for the tenant meant seriously to suggest that a trust estate in fee simple is bad. Exceptions overruled.