Dole v. Keyes
| Decision Date | 06 January 1887 |
| Citation | 9 N.E. 625,143 Mass. 237 |
| Parties | DOLE, Trustee v. KEYES and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Bricket & Poor and I.E. Pearl, for Susan B. Hanley.
If the language of the will is construed according to its technical force and meaning, a reversion remained in the heirs of the testator, the life-estates of John Perley and Sarah Lambert were merged in the reversion, and at their decease the children of each inherited from their parent one-half of the testator's estate. The intention of the testator, as clearly expressed in the will, is that, at the decease of his children, his estate shall pass by operation of law, and not by gift, to their children. His mistake was in supposing a reversion did not vest until the termination of the particular estate upon which it was expectant. The language used is, in effect, equivalent to a grant of a remainder to the heirs of the life-tenants. The word "children" may be construed to mean "heirs," in order to give effect to the intent of the testator. Houghton v. Kendall, 7 Allen, 72. Where an estate in remainder is devised to the heirs of a person to whom an intervening life-estate is given contingent remainders will be created for those who may be such heirs at the time of the death of the devisee of the life-estate. Putnam v. Gleason, 99 Mass. 454; Richardson v. Wheatland, 7 Metc. 169; White v Woodberry, 9 Pick. 136. The limitation over upon the death of the testator's children is not a devise to a single class. The children of each child of the testator form a distinct class, who respectively take the separate share of the estate in which their ancestor had a life-estate. Hills v. Simonds, 125 Mass. 536; Merriam v Simonds, 121 Mass. 198. Therefore, whether we construe the language strictly, or seek to carry into effect the intent of the testator, each of the three children of John Perley is entitled to one-third of that share of the testator's estate in which their father had a life-interest, or one-sixth of the entire estate.
D.L. Withington and N.N. Jones, for George Lambert, Georgianna F. Keyes, and William F. Clement.
This is a legacy to children of other persons than the testator, and by it is created vested remainders per capita, subject to open and admit after-born children. Weston v. Foster, 7 Metc. 297; Dingley v. Dingley, 5 Mass. 537; Balcom v. Haynes, 14 Allen, 204; Ballard v. Ballard, 18 Pick. 41; White v. Curtis, 12 Gray, 54; Moore v. Weaver, 16 Gray, 305; Pike v. Stephenson, 99 Mass. 188; Blanchard v. Blanchard, 1 Allen, 223; Hatfield v. Sohier, 114 Mass. 48; Darling v. Blanchard, 109 Mass. 176. See Richardson v. Wheatland, 7 Metc. 173; Winslow v. Goodwin, Id. 363; Rapalje & L.Law Dict. "Reversion;" Cruise, Dig. tit. 17, §§ 1-13; Com. Dig. "Estates," 4, 22.
The limitation to the children of the testator's children created a vested remainder, which opened and let in those born after the testator's death. Weston v. Foster, 7 Metc. 297; Hatfield v. Sohier, 114 Mass. 48; Gibbens v. Gibbens, 140 Mass. 102; S.C. 3 N.E. 1. The inartificial use of the word "revert" no more obscures the plain meaning that the children are to take as purchasers than "descend to his legal heirs" in White v. Woodberry, 9 Pick. 136, 138, or "inherit" in Moore v. Weaver, 16 Gray, 305.
The question whether the remainder is to be taken per capita or per stirpes is more difficult. The English rule is that, when property is given to A. and B. as tenants in common, and at their decease to their children, the latter take per stirpes; the testator's intent that the share of each tenant in common shall continue separate, and go to his children, being inferred from the fact that it will go over immediately upon his decease. Pery v. White, Cowp. 777, 781; Flinn v. Jenkins, 1 Colly.Ch. 365; Arrow v. Mellish, 1 De Gex & S. 355; Willes v. Douglas, 10 Beav. 47; Turner v. Whittaker, 23 Beav. 196; Wills v. Wills, L.R. 20 Eq. 342; Houghton v. Kendall, 7 Allen, 72, 77. Perhaps this court has gone further than the English courts would, in reading "at their decease" as meaning "when all the life-tenants shall have died," rather than "as they respectively die." Loring v. Coolidge, 99 Mass. 191, 192. But, when this interpretation is adopted, the reason for the English rule ceases, because the whole fund goes over together, instead of in separate shares at different times.
We are of opinion that the testator's grandchildren take per capita, not only on the ground that we must follow Loring v Coolidge, and hold that the whole fund...
To continue reading
Request your trial