Federhen v. Kibbey

• Decision Date: 07 January 1910
• Citation: 204 Mass. 291,90 N.E. 417
• Parties: FEDERHEN v. KIBBEY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 291

90 N.E. 417

FEDERHEN v. KIBBEY et al.

Supreme Judicial Court of Massachusetts, Bristol.

January 7, 1910

Jan. 7 1910.

COUNSEL

Gleason & Higgins, for respondent Rebecca L. Federhen.

John C Gray, for respondent Kibbey.

OPINION

MORTON J.

John Federhen, Sr., died July 30, 1898, leaving a will dated December 16, 1895, which was duly admitted to probate. At the time of the making of the will the testator had five children, all of whom were married and had children except Henry. The will left all of the testator's real estate to his son Herbert in trust for the term of ten years; the income remaining after the payment of charges and expenses to be divided during said term in certain proportions amongst the five children. Then follows the clause which has led to the bringing of this bill, namely: 'At the expiration of said trust at the end of said ten years I give and devise one undivided fifth part thereof in fee simple to each of my following four children, John, Herbert, Augusta and Frances, and I give and devise the other undivided fifth to my son Henry for the term of his life, and at his death of be equally divided among my four other children, the issue of any deceased child to take what would have been its parent's share if living.' The son John Federhen, 3d, died August 28, 1907, one year before the expiration of the ten years, leaving a will that was duly admitted to probate by which he undertook to dispose of all the property that would come to him under the will of his father 'at the termination of the trust therein.'

The question before us relates to the construction to be given to the clause quoted above from the will of John Federhen, Sr., more particularly the question is whether the concluding words, 'the issue of any deceased child to take what would have been its parent's share if living,' apply to the shares given to John, Herbert, Augusta and Frances as well as to that given to Henry for his life, or whether they refer only to Henry's share; the contention being in the former case that under the will of John Federhen, Sr., John Federhen, 3d, was given at the end of ten years as tenant in common an undivided fifth part of the principal of the real estate with a substitutionary gift to his issue in case he died before the end of the ten years and in the latter case that the shares vested absolutely in the four children at the testator's death as tenants in common with a postponement of the right of possession till the expiration of the ten years. The result of the former contention, if adopted, would be to...