Hills v. Barnard

Field, J. The two clauses of the paragraph of the will which we are called upon to consider, as we construe them, differ in [71] this: in the first, the four twelfths of the trust property which might remain if Benjamin L. Gorham died without leaving issue were given absolutely to persons named or designated, and there is no provision that these persons must be living when Benjamin L. Gorham died; in the second, the remaining eight twelfths were given to such of certain persons designated as might be living when Benjamin L. Gorham died. It is only in the latter clause, therefore, that the testator would feel the need of providing for the issue of a legatee dying after his death and before that of his son, and we think that the provision for the issue of a deceased legatee must be confined to that clause. The construction, therefore, which we give to this paragraph of the will is as follows. The persons to whom the first four twelfths were given, all having survived Benjamin Gorham, took on his death vested interests in the shares given them, subject to the contingency that Benjamin L. Gorham might die leaving issue, and to the further contingency that the whole trust fund might be expended for the use of Benjamin L. Gorham during his life. One twelfth part of the whole trust fund, therefore, should be paid to an executor of the will or to an administrator of the estate of Elizabeth C. Dutton, to be appointed; one twelfth to the executors of the will of Rev. Charles Lowell; one twelfth to the executor of the will of Francis C. Lowell; one twenty-fourth to John Lowell, and one twenty-fourth to John Lowell as executor of Susan Cabot Sohier. As to the remaining eight twelfths, only those persons take who were living when Benjamin L. Gorham died. These might be of two classes: first, the children then living of the four persons named, and, secondly, the issue then living of deceased children of these four pei-sons. All would take as of the death of Benjamin L. Gorham, the former per capita, the latter by right of representation. These eight twelfths, therefore, must be divided into as many parts as there were children then living of these four persons, if there were any, and as there were such children who had died before Benjamin L. Gorham, but had issue living when he died. Children of these four persons who died without leaving issue who survived Benjamin L. Gorham are not to be reckoned, because neither they nor their issue survived him. We do not find that any of the children of these four persons who died before the [72] death of Benjamin Gorham, the testator, left issue who were living when Benjamin L. Gorham died, and the question does not arise whether such issue if then living would have taken or not. The words “ deceased legatee ” mean any child of any of the four persons named who had deceased before Benjamin L. Gorham’s death, but who would have been a legatee if he or she had not deceased, and the clause should be construed as if it read, “ the remaining eight twelfths I give in equal shares to each of the children of, etc., who may be living when my son Benjamin L. Gorham dies, and to the issue who may then be living of any deceased child of, etc., the issue taking by right of representation.” Although the issue do not take from or through the nephew or niece whose issue they are, but directly under the will, yet they take in the same manner as if their shares had come to them from or through their parents. The issue of living issue of a deceased nephew or niece do not take, because all the issue take by way of representation, Winslow v. Goodwin, 7 Met. 363. Childs v. Russell, 11 Met. 16. Gardner v. Hooper, 3 Gray, 398. Sears v. Russell, 8 Gray, 86. Thomson v. Ludington, 104 Mass. 193. Denny v. Kettell, 135 Mass. 138. Lombard v. Willis, 147 Mass. 13. Dexter v. Inches, 147 Mass. 324. Coveny v. McLaughlin, 148 Mass; 576. Fargo v. Miller, 150 Mass. 225. The questions upon which we have felt the most doubt are whether the words “ the issue of any deceased legatee ” must not be held to mean “ children of a deceased legatee,” and whether such children did not take vested interests immediately on the death of their father or mother. It is difficult to distinguish this case from Martin v. Holgate, L. R. 1 H. L. 175, which was followed in Austin v. Bristol, 40 Conn. 120. See also In re Smith's trust, 7 Ch. D. 665; In re Orton's trust, L. R. 3 Eq. 375. In Martin v. Holgate, the residue of the estate was given in trust to pay the income to the widow of the testator during her life, and after her decease to distribute it “ amongst such of my said four nephews and two nieces [naming them] as shall be living at the time of her decease, in equal shares and proportions as tenants in common, and not as joint tenants; but if any or either of them should then be dead, leaving issue, then it is my will and meaning that such issue shall be entitled to their father’s or mother’s share, but in equal proportions.” It was held that [73] “issue” meant “ children”; that the gift to the issue was original, and not substitutional; and that the contingency in the gift to the nephews and nieces did not affect the nature of the gift to their issue, which was an independent bequest vesting in the issue immediately on the death of their parent in the lifetime of the widow. Before that decision the authorities in England had been conflicting, and they are all, or nearly all, reviewed in that case. There are some minute differences in the phraseology of the clause to be construed in the case at bar, and in that of the clause construed in Martin v. Holgate, but it is probable that they would not be regarded in England as sufficient to take the case out of the rule established in Martin v. Holgate. In that case, the only contingency which attached to the gift of the remainder was the uncertainty as to the particular persons of those named or designated who would take it. In the case at bar it was uncertain whether any of the classes of persons designated would take anything, because it was uncertain whether Benjamin L. Gorham would die without leaving issue, and also uncertain whether any of the trust fund would remain unexpended at his death. There may be interests in a contingent remainder which are vested subject to the happening of the contingency, as we have held in this case in construing the first clause of the paragraph of the will under consideration; but the fact that there is a contingency affecting the estate, as well as a contingency affecting the persons who are to take it, may throw some light upon the intention of the testator as to the time when a legacy should be considered as vesting. In the case at bar we are not satisfied that the meaning of the word “issue” is to be restricted to that of children. Issue ordinarily means all lineal descendants. Bigelow v. Morong, 103 Mass. 287. Hall v. Hall, 140 Mass. 267. If a nephew or niece had died after the death of the testator and before that of Benjamin L. Gorham, leaving no child but a grandchild who survived Benjamin L. Gorham, we do not think that the testator intended that such grandchild should not take its grandparent’s share. As was said in Dexter v. Inches, 147 Mass. 324, “ We are of opinion that the word ‘ issue,’ as here used, means descendants taking by way of representation,” and as they are to take their “ parents’ legacy,” we think that they must take it on the same contingency [74] as that on which their parent would have taken it, which is that of surviving Benjamin L. Gorham, and that the testator intended that all the persons who should take the eight twelfths of what remained of the property when Benjamin L. Gorham died, if he died without leaving issue, should be ascertained as of the same time, which is that of the death of Benjamin L. Gorham. The ruling of the single justice upon the question of parties was correct. A decree must be entered in accordance with this opinion, the details of which may be settled by a single justice. So ordered.