Bill in
equity by the trustees under the will of Samuel Dexter
Bradford, praying for instructions as to the construction of
the will. Hearing in the supreme judicial court for Suffolk
county, before HOLMES, J., who reserved the case for the
consideration of the full court, upon the following facts:
Samuel
Dexter Bradford died on January 12, 1873, leaving a will
under which the plaintiffs are trustees. By article 1 of said
will the testator, except as otherwise provided in the
subsequent articles thereof, gave to his wife, Rebecca, one
of the defendants, the use, benefit, and enjoyment, during
life, of all property of every name and nature of which the
testator should die seized, possessed, or entitled to, at law
or in equity, or of which he could by his father's will
or by any instrument, dispose of or direct the use or other
disposition of, by his last will or otherwise; and directed
and appointed that said Rebecca receive and enjoy, during her
life, the income of all property devised and bequeathed by
his father's will for the benefit of himself, his family
or any other person, whereof he, by his father's will, or
any instrument, could dispose or direct the use, ownership
or other disposition of the income, not included in the
foregoing gift to her of a life-estate or interest therein.
And, in case any subsequent gift or direction in the will
should fail, he gave the use or income of all property in
respect to which the gift or direction should so fail to his
said wife for life. By article 2, and the codicil to his
will, he gave to his wife, in fee and absolutely, his
dwelling-house, and all adjacent land at Newport
Rhode Island, and all his personal property, and all debts,
demands, and securities and rights belonging to him, except
those held in trust under the will of his father. Articles 3,
4, and 5 of said will of the testator were as follows:
"Art.
3. Whereas, by the terms of my father's will, certain
property, real and personal, including his homestead at West
Roxbury, Massachusetts, is bequeathed and devised, to be held
in trust or otherwise, for the benefit of my mother, during
her life-time, and one-half of the same, or of the proceeds
thereof, may be disposed of by me, subject to her interest
therein or the trusts for her benefit, I do therefore order,
direct, and appoint that, if my said wife is living at the
time of my mother's death, she shall have the use,
benefit, and enjoyment of that part of said property which is
thus liable to be disposed of by me, or of the income
thereof, if my power extends no further than to dispose of
the income, till the eldest of my children, who survives me,
attains his majority. When that event happens, if she is
still living, my executors are directed to set apart out of
the said property a fund for the benefit of said child,
consisting of money or securities, or partly of money and
partly of securities, to the amount or value of $100,000.
When my second child, who survives me, attains his or her
majority, my said executors are directed to set apart, for
his or her benefit, a similar fund of $100,000; and so on in
succession, as each child attains his or her majority, until
a fund of the amount or value of $100,000 has been set apart
for each of my children who attains majority. My said wife
shall continue to have the use, benefit, and enjoyment of the
remainder of the property, or of the income of such
remainder, as the case may be, as each successive fund is set
apart, (and of the remainder after all the funds are set
apart,) during her life-time as aforesaid. And I order,
direct, and appoint that, at any time after my mother's
death, my said wife may give to any of my children, or to any
issue of such child, absolutely and indefeasibly, any part of
the capital of the property mentioned in this or in the first
article of this will, except such portion thereof as may have
been set apart to constitute any of the funds mentioned in
this article, or which it is necessary to retain in order to
constitute all of said funds. And every division to be
afterwards made, as hereinafter provided, shall be made
without reference to such gift, the residue only being
divided.
"Art.
4. Immediately after the death of my said wife, my surviving
executors are directed to divide all the estate and property
mentioned in any part of this will, except that mentioned in
the second article thereof, into as many shares as I shall
leave children me surviving, who have also survived till
their mother's death, or who have died and left issue
surviving at that time. If my mother dies before my wife, any
of the funds which have been set apart, as provided in the
third article of this will, shall be accounted a part of the
share to which the child, or the issue of the child for whom
it was set apart, would be entitled at my wife's death;
but it shall not again be divided as part of the estate
mentioned in this article. If, on the other hand, my wife
dies before my mother, the division provided for in this
article shall be made without reference to the property
bequeathed and devised by my father for my mother's
benefit, as stated in the foregoing third article; and, after
my mother's death, that portion of said property which is
subject to my disposition, as therein stated, shall be
divided into as many shares as I shall leave children me
surviving, who have also survived till their
grandmother's death, or who have died and left issue
surviving at that time. And, in order to enable them the
better to make the division or divisions herein provided for,
and to discharge their powers and duties under this will, I
hereby bequeath and devise to said executors, and the
survivor or survivors of them, in trust for the purposes
herein mentioned, all the property mentioned in this will,
except in the second article thereof, subject to the
life-estates and interests of my said wife and mother
respectively.
"Art. 5. Every fund or share to be created or
set apart, as hereinbefore provided for, shall be equal in
value or amount, in executor's judgment, to every other
fund or share to be created or set apart at the same time.
Every fund or share created or set apart for the benefit of
the issue of a deceased child shall be immediately paid,
delivered, or transferred to such issue. Every fund or share
created or set apart for the benefit of a child who is then
living shall be held and managed by executors, during the
life-time of that child, in trust to invest and reinvest the
same, and to pay over the clear income thereof, deducting
expenses, to that child, as the same accrues, and not
otherwise; the anticipation of any such income being hereby
expressly prohibited. At his or her death, leaving surviving
issue, such issue shall take absolutely the capital and
unexpended income of such fund or share. But, if such child
leaves no surviving issue, he or she may dispose of the
capital and unexpended income by a last will and testament,
but not otherwise. In default of any such disposition, such
capital and unexpended income, or the part thereof not
disposed of, shall be equally divided between my other
children then surviving and the surviving issue of those who
may be dead; such issue to take the share to which the parent
would have been entitled if living."
The
remaining articles and the codicil (except as referred to
above) are not material to the decision in the case. Mrs.
Julia E. Bradford, the mother of the testator, died August
15, 1886, and the three defendants, children of the testator,
are all the children he ever had, and are all over 21 years
of age. All property received and held by the plaintiffs as
trustees under the testator's will, is personal property,
and amounts only to the sum of $389,101.43, and all property
held by them under article 3 of the will amounts to the sum
of $125,000, and no more, and constitutes a part of the
above-named sum of $389,101.43. The real estate in West
Roxbury, mentioned and referred to in article 3 of the will,
was conveyed by the testator in fee to his mother, Julia Emma
Bradford, long prior to the date of said will and codicil,
and the real estate mentioned and referred to in article 2 of
the will, situate at Newport, Rhode Island, was conveyed by
the testator long prior to the date of the will, to Arthur W.
Austin, in trust for the creditors of said testator, and for
other purposes.
The
bill set forth that conflicting claims were made upon the
plaintiffs, respecting the legacies given to the several
children of the testator under article 3 of the will, upon
attaining the age of 21 years, and the death of the
testator's mother; each of the above-named defendants
Mary Josephine Kissel, Samuel Dexter Bradford, and Julia Emma
Bradford, children of the testator, and Godfrey Kissel,
husband of the said Mary Josephine, claiming and insisting
that, notwithstanding the funds held by the plaintiffs as
trustees under article 3 of the will amounted to but
$125,000, they should each have forth with set out for them
separately, to be held under the provisions of the will, a
fund of $100,000, to be made up from said fund of $125,000,
under article 3 of the will, and so much as might be
necessary from the remainder of the trust-estate held by the
plaintiffs, and in which the defendant Rebecca M. Brinley,
and her husband, Edward H. Brinley, claim that she has a
life-estate or the income of; while the mother, the said
defendant Rebecca M. Brinley, and her husband, Edward H.
Brinley, both claimed that, under said article 3, each of the
defendants, children of the testator, said Mary Josephine
Kissel, Samuel Dexter Bradford, and Julia Emma Bradford...
