Ball v. Holland

Braley, J. The scheme of the will was to make full provisions for the support of the testator’s wife, and, during minority, of their minor children living at his death. To accomplish this she was given full authority, so long as she lived and remained unmarried, to spend not only the income but the residue of his entire property after the payment of nominal pecuniary legacies provided for in the second clause of the will. Until her widowhood was terminated it could not be determined whether any of his property would be left for distribution under the fifth clause. If there was, he directed at her death “ then that all of my property which she may possess shall be disposed of equally among all my surviving children.” The widow having died unmarried, leaving surviving children, and representatives of those that have deceased since the’death of her husband, the question is, among whom is the remainder of his property, not used by her, to be distributed. The general rule is well settled that a remainder after a life estate is held to have vested at the death of the testator, unless from the terms of the will it clearly appears to have been his intention that it should not vest except upon the happening of the event on which the final distribution of any residue remaining is to be made. Cushman v. Arnold, 185 Mass. 165, 168, 169. If he had said, “ At the death, or marriage of my widow I give all of my property which she may possess to such of my children as shall then be living,” those alive at the time fixed would have taken a contingent remainder. Thomson v. Ludington, 104 Mass. 193. If the adverb “ then ” refers to his wife’s death as the period when possession shall be taken, and not to the time when the estate is to vest, this construction does not dispose of the word “ surviving”, for if he had meant that all his children living at his decease should participate ordinarily this word would seem to be unnecessary. Throughout the will the testator when he has occasion to refer to them invariably limits those that are to take to children living at the end of the period. Thus in the fourth clause, which provides fór a division if his widow again marries, he expresses his purpose by directing it to be among “my surviving children.” [373] It is possible to hold from these clauses that he meant such of his children as might be living at the termination of their mother’s estate, and so bring the case within a line of decisions where under language largely, if not exactly similar, such a construction has been adopted. Olney v. Hull, 21 Pick. 311. Smith v. Rice, 130 Mass. 441. Denny v. Kettell, 135 Mass. 138. Coveny v. McLaughlin, 148 Mass. 576. Bigelow v. Clap, 166 Mass. 88. Hale v. Hobson, 167 Mass. 397. Harding v. Harding, 174 Mass. 268. But upon resorting to the second clause, which is preliminary to his principal purpose, the gift by name is “ to my sons and daughters should they be alive at the time of my decease or any of them that may be alive.” The will speaks only from his death, when eleven of the twelve children born of the marriage survived, and the more natural construction, in the light of the whole will and of this fact, is that he refers to these children as a class in the sense that they were to take all of his property subject to the devise in favor of his wife, although they might die before their mother. Bosworth v. Stockbridge, ante, 266. We are of opinion, therefore, that the remainder vested at the death of the testator, and that his children then living, with the representatives of any child since deceased, are entitled to the residue of the estate. Decree of the Probate Court affirmed.