Stearns v. Fenno

De Courcy, J. James W. Fenno, the testator, died in 1868, leaving a widow, Martha J. L. Fenno, a daughter, Martha A. Upton, and a son, James W. Fenno. The trustees were directed to pay to each of these for life one third part of the income. The will then expressly provided: “Upon the decease of either of my children leaving issue of his or her body lawfully begotten then such issue shall inherit share and share alike the portion of said real and personal estate to the income of which their parent was entitled be entitled to partition of the real estate and to the portion set off to them on such partition in fee simple and to their rightful share of said personal estate to their sole use.” Accordingly, when said Martha A. Upton died on May 5, 1884, the trustees should have distributed one third of the principal of the trust to her children Myra F. Upton (now Cutler) and Isabelle T. Upton (now Elms) in equal parts. It is also clear that from the death of the testator’s said daughter in 1884 until the death of his widow on October 25, 1898, the income of the remaining trust estate was payable in equal shares to his widow and son. The event which has happened, namely the death of the widow after that of the daughter, is not specifically provided for in [252] express terms; but an examination of the whole will discloses quite clearly what was the intention of the testator. Metcalf v. Framingham Parish, 128 Mass. 370. That he intended to dispose of his entire estate by the will is agreed by all the parties. The widow was to share in the income only, and the will provided “Upon the decease of my wife then my daughter shall be entitled to one half the income of my real and personal estate and my son to the other half of the same.” His two children also were to enjoy only the income of the trust estate. As the recipients of the principal, the persons the testator had in mind were the issue of these children, and it was only in the event of the death of both children without issue that the remainder was to go elsewhere. A reading of the will as' a whole convinces us that the testator intended to treat his two children alike, and that one half of the principal was to go to the issue of Martha A. Upton eventually. On her death they became entitled to one third (or two sixths) by the express terms of the clause already quoted. On the death of the second life tenant, the widow, they became entitled to the remaining one sixth. Sanger v. Bourke, 209 Mass. 481. Admittedly the other one half of the estate is to be held by the trustees during the lifetime of the son, James W. Fenno, and the income paid to him. As the entire income of this half, since the death of the widow on October 25, 1898, belongs to him, we see no occasion for making him contribute toward that income the interest on the $10,000, assuming that this question is now before us. It fellows from what has been said that the decree of the single justice must be affirmed with costs. Ordered accordingly.