Bragg v. Carter

Lathrop, J. The general scheme of the testator is this. He gives to his wife the furniture which is in his dwelling-house, and also gives to her the use and improvement of all his real estate and personal property during her life. At the decease of his wife, he gives a life estate to his children, naming them, and makes a provision for the case of a child dying leaving a child or children, and for the case of a child leaving a widow. On the death of all the children mentioned, he gives all of his estate, real and personal, to his grandchildren who may then be living, to be equally divided between them. He also appoints an executor and trustee “ to carry out the provisions of this will.” To the executor is given power to sell any portion of the real estate; “ such sale of real estate is to be deemed by my said executor to be for the benefit of my family, and consent to such sale must be first given in writing,” by the widow if living, and by a majority of the children living at the time of the sale. The executor is further directed to u invest the proceeds of such sale in some safe manner . . . for the benefit of my family.” The testator died in 1864, leaving a widow and eight children surviving him, three of whom were married. The widow died [328] in 1878. Since the testator’s death, five of his children have died, two leaving issue, and three leaving no issue. One of the two leaving issue was a son, Samuel W. Cutter, who left a son Samuel and a daughter Mary, now Mrs. McMahon. Samuel, the grandson of the testator, is now dead, leaving a widow arid three minor children. His sister also survived him. The question before the court is whether the income of his father’s share should be paid to his sister or to his three minor children, who were the great-grandchildren of the testator. The language of the will seems to us reasonably plain. After the provision giving the children of the testator a life interest, it is provided, leaving out the provision for a widow of a child : “and on the decease of either of the above named children leaving a child or children, the proportion of such deceased child’s income shall be given to said child or children.” Mrs. McMahon is now the only surviving child of Samuel W. Cutter, and is therefore entitled to the income. One ground upon which the great-grandchildren of the testator contend that they are entitled to the income is, that the will provides for the case of the death of any one of the testator’s children “leaving no lawful issue or widow,” in which event “ the proportion of such deceased child’s income shall be given to the surviving brothers and sisters in equal proportions.” The word “ issue ” may, undoubtedly, not be restricted to children, (Hills v. Barnard, 152 Mass. 67, 73,) but we have no occasion in this case to consider whether the testator in that particular clause intended children or a more remote descendant, for Mrs. McMahon does not claim under this clause. It is further contended that, as the word “ children ” may be interpreted to mean grandchildren, (Bowker v. Bowker, 148 Mass. 198,) so the word “grandchildren” may be interpreted to mean great-grandchildren, and that when the fund comes to be divided, if there are no grandchildren then living, the great-grandchildren may take under the will. But whatever construction may be given if there are no grandchildren when the last child of the testator dies, it is manifest that the testator did not intend to go beyond grandchildren, if there were any of this class living when the principal came to be disposed of. The estate is then to be divided, not per stirpes but per capita. [329] The language is “ to my grandchildren who may be then living, to be equally divided between them.” We are therefore of opinion that the decree of the single justice, so far as it relates to the questions argued before us, should be affirmed. So much of the decree as relates to an allowance to counsel for fees and expenses is to be settled by a single justice, as we do not understand that the allowance made includes the services of counsel on the appeal. Decree accordingly.