Dorr v. Johnson

Lathrop, J. While the second clause of the will before us, taken by itself, might be held, under the Pub. Sts. c." 127,- § 24, to give to Mary Emma Johnson an equitable estate in fee, yet, as there are no words of inheritance, the intention of the testator is to be gathered from the will taken as a whole. Turning to the other .provisions of the will, we find in the third clause no words of inheritance, and the object of this clause is to terminate the trust estate in two events,, the first being the arrival of the devisee at the age of twenty-three years, and the second being her marriage before that age. The fourth clause, we are of opinion, shows clearly that it was not the intent of the testatrix to give to the devisee an absolute fee simple, in case she died without issue. If the words “ without issue ” mean an indefinite failure of issue, then Mary Emma took an estate tail, and the Asylum and Eleanor Rowlands took vested remainders. Parker v. Parker, 5 Met. 134. Hayward v. Howe, 12 Gray, 49. Whitcomb v. Taylor, 122 Mass. 243, 249. If the words mean a definite failure of issue, then Mary Emma took an estate in fee simple, terminable upon her dying without issue then living, and the Asylum and Eleanor Rowlands took by way of executory devise. Brightman v. Brightman, 100 Mass. 238. Schmaunz v. Goss, 132 Mass. 141, 145. Hooper v. Bradbury, 133 Mass. 303, 304. In either case the Asylum and Mrs. Rowlands or her heirs, as she is dead, are entitled to the fund realized by the sale of the estate by the trustee with their assent. Decree accordingly.