Boston Safe Deposit & Trust Co. v. Nevin

Sheldon, J. Hannah Tirrell having died before the testatrix, the four surviving children of the latter took the residue of her estate in equal shares for their lives, with remainders except as to Alfred Tirrell to their respective children, if any. Upon his decease his share went to his widow for her life. After his death, Mrs. Durrell, another child of the testatrix, died without issue. Thereupon, by the express terms of the second clause of the will, the share of the income which Mrs. Durrell had received went to increase the shares of the other children, or of those who had become entitled to the share of any deceased child. This is the only construction which can be given to the language of the will. M. Frances Tirrell, the widow of Alfred Tirrell, became entitled to what Alfred was to have taken. In like manner Mrs. Nevin, by the decease of her mother Mrs. Bates, had become entitled to the amount of which the income would have gone to Mrs. Bates. That sum was one fourth part of the residue until the decease of Mrs. Durrell, and was increased upon that decease to one-third. So the share of James Tirrell in the income of the trust fund was likewise increased upon the decease of Mrs. Durrell to one third part thereof. Cook v. Smith, 101 Mass. 341. Bowker v. Bowker, 148 Mass. 198. Sanger v. Bourke, 209 Mass. 481. It follows that after the death of Mrs. Durrell, M. Frances Tirrell became and still is entitled for her life to the income of one third of the fund, and the shares represented respectively by Mrs. Bates and James Tirrell are each one third part of the fund, or what is [236] the same thing, one half part thereof subject to the life interest of M. Frances Tirrell in one third part thereof. The testatrix evidently intended that upon the death of any one of her children, the children of any of her own children who were then deceased should share per stirpes with the surviving children in the part of which the deceased child had enjoyed the income, and that such children of a deceased child should take the share that their parent would have taken had he or she been living. Minot v. Taylor, 129 Mass. 160. Niles v. Almy, 161 Mass. 29. The language of this testatrix differs from that which was construed in Lawrence v. Phillips, 186 Mass. 320, and Dary v. Grau, 190 Mass. 482. The son James Tirrell after the death of Mrs. Durrell had an equitable life estate in one third part of the fund, and the principal thereof was to go to his children. He died in 1909, leaving one son, James Tirrell, Jr., and two grandchildren, the children of a daughter who had died during his lifetime. One question raised is as to the disposition of this part of the fund. This is to be determined by the language of the will construed with reference to the state of affairs so far as that was. known to the testatrix, or fairly must be presumed to have been contemplated by her. We are only to give effect to her intention as thus determined. Sanger v. Bourke, 209 Mass. 481, 487. This testatrix has undertaken to declare her intent. After the provision that upon the decease of any one of her children “having children of his or her body,” such children should take the share of their parent, she says “the property is to be kept for my children and the children of their respective bodies,” with an exception not now material. It is contended that this language taken literally would include only the son of James Tirrell who survived him, and would exclude his two grandchildren, the children of his deceased daughter Helen, who had died during the lifetime of her father. As was said by Hoar, J., in Houghton v. Kendall, 7 Allen, 72, 75, “The general rule is, that where there are children who fully answer the description, and confining the bequest to them will satisfy the whole apparent design of the testator, grandchildren or other more remote descendants will not be permitted to share with them, because in the ordinary use of language the word ‘children’ does not include grandchildren,” although “wherethere [237] is any reason to suppose that such was the intention of the testator, ‘children’ may be construed as meaning ‘issue’.” It is claimed by James Tirrell, Jr., that no such intention can be found in the will; that the word “children” must be limited to its exact and proper signification; and that he, as the only person who upon the death of his father answered to that description, now is entitled to the whole share of which his father received the income. Bragg v. Carter, 171 Mass. 324. Lawrence v. Phillips, 186 Mass. 320. There is force in this argument; and it perhaps would be unanswerable if it depended solely upon the meaning of the word “children,” and if it were not for another circumstance which in our opinion is decisive against this contention. This will was dated December 22, 1880. The testatrix died on August 13, 1888. Helen F. Brook, the deceased daughter of James Tirrell, died on April 25,1906, aged thirty-six years, so that she must have been born on or before April 25, 1870. It therefore appears that both when the will was made and when the testatrix died, the son James Tirrell had living these two children, as must have been known to the testatrix. Under the bequest to their father for life with remainder to the children of his body, they respectively took indefeasible vested remainders in fee, remainders which were none the less vested because they might have been opened to let in after-born children of their father or because the property which was the subject of these remainders might be, as it was, afterwards increased in amount by the death of other life tenants. This point was expressly decided, with numerous references to earlier cases, in Wight v. Shaw, 5 Cush. 56. It was again so held, upon facts which in essential matters closely resembled those now presented in Gardiner v. Guild, 106 Mass. 25. There are many similar decisions. Fay v. Sylvester, 2 Gray, 171. Gibbens v. Gibbens, 140 Mass. 102. Dole v. Keyes, 143 Mass. 237. Dodd v. Winship, 144 Mass. 461. Lombard v. Willis, 147 Mass. 13. Marsh v. Hoyt, 161 Mass. 459. Shaw v. Eckley, 169 Mass. 119. Minot v. Purrington, 190 Mass. 336. Minot v. Doggett, 190 Mass. 435. Gray v. Whittemore, 192 Mass. 367, 376. Bryant v. Flanders, 201 Mass. 373. Both of these children, James and Helen, perfectly answered the description given in the will, both when it was made and when it took effect at the death of the testatrix, and there is nothing to control the presumption that the interest of each of [238] them became vested at the latter date. Pike v. Stephenson, 99 Mass. 188. Cummings v. Cummings, 146 Mass. 501. Lombard v. Willis, 147 Mass. 13. Cushman v. Arnold, 185 Mass. 165. The will does not provide that the remaindermen are to be ascertained only at the end of the life estate, a circumstance upon which stress has been laid in some cases. And the presumption that it was intended to give vested interests is strengthened by the fact that the provision is for the benefit of the direct descendants of the testatrix. Stanwood v. Stanwood, 179 Mass. 223. Crapo v. Price, 190 Mass. 317, 319. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 39. It follows that the right to the share of which James Tirrell enjoyed the income is now vested one half in James Tirrell, Jr., and one half in the estate of his deceased daughter Helen. There is no dispute, and we think it plain, that subject to the life interest of M. Frances Tirrell in one third part of the fund, it belongs wholly to Mrs. Nevin and the issue of James Tirrell. So far as the share which, as we have held, vested in Helen F. Brook consists of real estate, it should be transferred to her children Cranmore W. Brook and Tirrell Brook, if as seems to have been assumed they were her only heirs; so far as it consists of personal property, it should be paid to the administrator of her estate. Marsh v. Hoyt, 161 Mass. 459. O’Brien v. Lewis, 208 Mass. 515. The plaintiff is to be instructed that subject to the right of M. Frances Tirrell to the income of one third of the fund, it belongs one half part to Mrs. Nevin and one half part to the son and the estate of the daughter of James Tirrell; and that payment and transfer should be made in the manner which has been stated. So ordered.