Denny v. Kettell

• Decision Date: 11 May 1883
• Citation: 135 Mass. 138
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Henry G. Denny v. Rebecca G. Kettell & others

135 Mass. 138

Henry G. Denny v. Rebecca G. Kettell & others

Supreme Court of Massachusetts

May 11, 1883

Suffolk. Bill in equity, by the executor of and trustee under the will of Henry Bartlett, to obtain the instructions of the court as to the construction of the will. Hearing before C. Allen J. who reserved the case for the consideration of the full court. The facts appear in the opinion.

G. O Shattuck & W. A. Munroe, for the nephews and nieces of the testator.

A. R Brown, for the representatives of a deceased nephew.

C Allen J. Field & W. Allen JJ., absent. Holmes, J., did not sit.

OPINION

C. Allen J.

The testator left a fund, consisting of both real and personal property, in trust, 1st, to pay the net income to his wife for her life; 2d, after her death, to pay from the principal of the fund certain specific sums to various persons and societies; 3d, to pay the net income of the residue to two persons, and the survivor of them; 4th, after the decease of the survivor, to pay a certain specific sum to Harvard University; and 5th, to pay over "all the residue of said trust fund, in equal portions, to my surviving nephews and nieces." At the testator's death, ten nephews and nieces were living; and one of the nephews afterwards died, before the time came for the final distribution. The question is, whether the legal representatives of the deceased nephew are entitled to a share in the distribution, or whether only those nephews and nieces are so entitled who were living when the time for the final distribution came.

The question to what period survivorship is to relate must depend rather upon the apparent intention of the testator, in each case, than upon any rigid rule. Here were two separate life estates, preceding the time for distribution. The various legacies to persons from the principal of the fund were to be paid only in case the legatees named should survive the testator's wife. The testator had in mind, in these clauses, a later period of survivorship than his own death. All the residue of said trust fund, which was finally to be divided, was what would be left after the end of both of the life estates, and after the payment of all of the specific sums to the different persons and societies named. This residue was not ascertainable till the time came for its distribution. The word "surviving" more naturally relates to that time when the residue was to be ascertained and...