Bowker v. Bowker
| Decision Date | 02 January 1889 |
| Citation | 19 N.E. 213,148 Mass. 198 |
| Parties | BOWKER v. BOWKER et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Charles Bowker, appellant, pro se.
C Sewall, for appellee, George Bowker.
Stillman B. Allen and JF. Wheeler, for children of Eunice Torrey.
At the decease of the testator seven of his children survived him who were all living at the time that he made his will, while at that time his daughter Mrs. Eunice Torrey had deceased. In the first clause of his will he makes provision for his wife for life, and disposes of the property held in trust for this purpose at her decease, by devising and bequeathing "the same, to be equally divided among all my children, to their use and benefit forever; the issue of my deceased daughter Eunice, and the issue of any other of my children who may not be living at the time of my decease, to take together the share of their deceased parent, respectively." While this clause disposes only of the property set aside for the life-estate of the widow, the words "all my children" are controlled by the explanation that the issue of Eunice and that of any other child who may decease is to take their deceased parents' share. In this clause he certainly included such issue among his children, and the definition of the words here made is important in construing other parts of the will. In the second clause of the will he bequeaths to each of his children a thousand dollars, bequeathing to a trustee the same sum, to be expended in maintaining and educating the children of his deceased daughter Eunice. He then devises the whole of the residue of his estate to his son Daniel R. Bowker, as trustee, to keep the same well invested, to pay $500 every year to his widow. He directs that the income of the residue shall be divided into eight equal "parts" or "shares," which words he uses interchangeably in this clause, ordering the trustee to appropriate one-eight part to the education of the children of Eunice, until they shall arrive at the age of 21 years, and, upon the arrival of each at that age, such child is to receive its equal part of the principal which produced said income. The remaining income is to be divided equally among his children "now living," during their lives, and, at the decease of each, the trustee is to divide the share of income belonging to such child among their issue, until they shall arrive at the age of 21 years, when the principal of their parent's share is to be divided to them as they arrive, respectively, at that age. The testator then adds: "My meaning and intention being that my said children shall receive only the income of their respective portions, and that their children shall have their equal shares of the principal when they arrive at twenty-one years of age, and not before; and, if any of my children shall die without issue, their shares are to be added to those of the other children." It is upon the latter clause of this sentence that the question, upon which the bill in the case at bar asks instructions, arises.
The widow is now dead, and Mrs Nancy B. Curtis, a daughter of the testator, who survived him, has also now deceased without issue. The inquiry is whether the children of Eunice are entitled to a share in the division of the one-eighth part held in trust for Mrs Curtis during her life.
The ruling idea of the testator, that there should be perfect equality among his children, or among their respective families, is shown throughout the will. As in the first clause, the children of Eunice, or of any child who may die before him, as a family, are distinctly included among his children; so, in the second clause, the same sum is appropriated to the benefit of the...
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