Balch v. Pickering

Holmes, J. This is a bill, brought by.the trustees under the will of Daniel Hammond, for the construction of - the latter part of the fifth article of his will. The testator left one son and six daughters. One - daughter, Sally S. Pickering, has died, leaving no child living at the. time of her death. The son had died before her, leaving one child, the defendant George Francis Hammond. The. question is whether this defendant is entitled to a share in the principal of the share of which Sally Pickering [366] received the income. The words to be construed are “ if any one or more of my said daughters or son shall decease, leaving no child or children living at the time of such decease, the principal sum of which such deceased daughter or son may have had the income for life shall be distributed to the surviving daughters and son; that is to say, the income for their several lives, and the principal to their children, as above provided and arranged.” The literal meaning of the words is, that, when a child of the testator shall die leaving children, the latter shall receive the principal sum of which their parents had received the income, and thereupon their interest in the joint fund' shall cease, although, as the result of such cessation, they may happen to lose the secondary and accidental advantage of sharing in the division of some other child’s share if another child of the testator should chance to die later and leave no children of his or her own. See In re Horner's estate, 19 Ch. D. 186; In re Benn, 29 Ch. D. 839. On the other hand, there is the same, unlikelihood that the testator intended an aleatory gift, which has led to the statutory construction against joint tenancies. Probably the testator did not have it in mind. to deprive any set of grandchildren of this secondary advantage because of the previous death of their parent. If that is the result of the words used, it is an accidental result, not the object of his disposition. The general purpose manifested is that the grandchildren should stand as well with regard to the principal as their parent stood with regard to the income, and that the division between the different branches of the testator’s family should be equal, taking advances into account. It should be added, that, so far as the present question is concerned, the different branches stand exactly alike, — the children of daughters equal per stirpes, and the child of the son equal to the children of a daughter. If the literal meaning of the words is adopted, then, if the last sister who died should leave no children living, the limitation would fail altogether, and there would be an intestacy, as the fifth article is a residuary clause. Although I have not been able to free my mind from doubt, the latter considerations have prevailed with the court in favor [367] of equality of distribution, and against the disinheritance pro tanto of grandchildren whose parents were not living. We read the last words of the fifth article as meaning that the income of their proportion of the deceased child’s share shall be paid to the other children of the testator who are alive, and that the principal of a like proportion shall be paid to the children of his other children who are dead, as well as to the children of the surviving children when the latter shall die. Whether the interest of grandchildren would be devested by death before the death of the childless daughter, we need not determine. See Minot v. Taylor, 129 Mass. 160; Bowker v. Bowker, 148 Mass. 198 ; In re Bowman, 41 Ch. D. 525. We cannot agree that the effect of the will is modified by the fourth codicil, giving to the testator’s son George one seventh, instead of the one half of one seventh, given him by the will. Decree accordingly.