Baxter v. Bickford

Sheldon, J. There can be no question that the testator intended by the third clause of his will to give to his niece, subject to the provision made for his wife, the residue of his estate, including the land here in question, for her life, with remainder in fee to her issue. Unless there is some rule of law to the contrary, this intention should be given effect by the courts. Whitcomb v. Taylor, 122 Mass. 243. The intent of the testator must prevail if it is consistent, with the rules of law. Jewett v. Jewett, 200 Mass. 310, 317. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 38. Gray v. Whittemore, 192 Mass. 367, 374. Crapo v. Price, 190 Mass. 317, 319, 320. McCurdy v. McCallum, 186 Mass. 464, 468. But this construction is rather in accordance than at variance with the rules of construction adopted in this Commonwealth. Pub. Sts. c. 126, § 4, in force when this will took effect. Trumbull v. Trumbull, 149 Mass. 200, 203. Sands v. Old Colony Trust Co. 195 Mass. 575, 578. We have not here a limitation like that which was considered in Kendall v. Clapp, 163 Mass. 69. The petitioner contends that this limitation, “to my niece ... to hold and enjoy during her natural life, a.nd to her progeny, if any, but in case she dies without issue, then ... to my heirs at law,” created an estate tail in the niece. He relies on Machell v. Weeding, 8 Sim. 4, and Sandes v. Cooke, L. R. Ir. 21 Ch. D. 445. See also 1 Jarm. Wills, (6th ed.) 555, and Theobald, Wills, (7th ed.) 422. But these cases go upon the ground that the word “ issue” is to be treated prima facie as a word of limitation merely, just as the word “ heirs ” was treated by this court in Kendall v. Clapp, 163 Mass. 69, already referred to. Their doctrine cannot be applied in this Commonwealth to a devise expressly limited to one for life with remainder over to his issue. And we think it plain that the failure of issue here spoken of is such a failure at the death of the niece, and not an indefinite failure [497] of her issue. The limitation over is to take effect, if at all, at her death; and the manifest intention of the testator is not to be defeated by treating either the word “ progeny ” or the word “ issue ” as a word of limitation, independently of the provisions of R. L. c. 134, § 5, which do not affect this devise.* Stone v. Bradlee, 183 Mass. 165, 169, 170. Lawrence v. Phillips, 186 Mass. 320. Dary v. Grau, 190 Mass. 482, 486. We do not doubt, however, that the word “ progeny ” was used by the testator as equivalent to the more commonly used word “ issue.” The testator’s niece, Sarah Elizabeth Jenks, took only a life estate in the land devised to her; the petitioner has acquired no greater interest in that land, and has not a title proper for registration. R. L. c. 128, § 18. St. 1905, c. 249, § 2. Accordingly the order that the petition should be dismissed was right. Exceptions overruled. Footnotes [*] R. L. c. 134, § 5, originally enacted in St. 1888, c. 273, by its terms applied only to instruments executed after April 30, 1888.