Fabens v. Fabens
| Decision Date | 31 March 1886 |
| Citation | 5 N.E. 650,141 Mass. 395 |
| Parties | FABENS and others v. FABENS and others. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Russell & Putnam, for plaintiffs.
Swasey & Swasey, for various defendants.
The first question which we have considered is whether the whole estate is to be kept together until the death of the widow and of all the children of the testator, or whether, upon the death of any child, his or her heirs shall at once receive a distribution of that portion of the estate of which the child had received the income. It does not appear that any injury will result to the widow or to any of the surviving children from making such distribution, and none has been suggested by counsel. The widow will still receive the income of one-fifth of the whole property, as she does at present. The advantage if any, to be derived from keeping the whole estate together, with a view to the probability of making more advantageous investments, does not appear to have been specially in the testator's mind, and is at best but conjectural. The phraseology of the will might lead to the suggestion that the testator did not wish his widow or either of his children, in any event, to become the owner of any portion of the principal of his estate, and that they may become so, as heirs of a child who may die without leaving issue, in case there is to be an immediate distribution to the heirs of such child, upon his or her decease. For instance, the daughter Leonide is now living and unmarried. She is entitled to one-fifth part of the income. If she were to die now, unmarried, and if her share should be distributed at once, it would of course go to her mother as heir; and if her mother were to die first, then the share of Leonide would go to her brothers, including the children of Charles, by right of representation. If it were plain that the testator did not wish this result to happen, that would be a reason for holding that the whole estate should be kept together; but, as far as the purpose of the testator can be divined from his somewhat meager expression of it, we think it equally rational to hold that he simply meant that no child should spend or dispose of his own share, so as to cut off his heirs at law; but that he did not mean to cut off the right of the widow or children to take as heirs at law of any child who might die without leaving issue. It might also be suggested that if the heirs of a deceased child are entitled to the share of such child immediately upon his or her death, successive distributions may become necessary; for instance, that if the widow should die shortly hereafter the children of Charles would then be entitled to one-fourth part of the one-fifth of the estate, the income whereof is now paid her; and that if another child should then die without leaving issue the children of Charles would then be entitled to a still further distribution of principal. These considerations, however, only affect the convenience of managing the trust, and are outweighed by those in favor of making as early a distribution of the estate as may be consistent with the expressed intention of the testator. Taking the whole will and codicil together, they indicate, on the part of the testator, a marked affection for and confidence in his wife and children, so that it is not to be said of him that he showed more care for his remote descendants, whom he had not seen, than for his wife and children with whom he was living; and, on the whole, we find no sufficient reason for holding that the share of a deceased child must be held in trust until the death of the testator's widow and all of his children.
It remains to determine who shall take under the gift to "the heirs of my children." It is contended, in behalf of the widow of the deceased son, that these words should be read in a double sense, so as to mean the heirs at law in relation to the real estate, and those persons who would be entitled under the statute of distributions in...
To continue reading
Request your trial