Hale v. Hobson
| Decision Date | 11 January 1897 |
| Citation | 167 Mass. 397,45 N.E. 913 |
| Parties | HALE et al. v. HOBSON et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert
M. Morse and William M. Richardson, for complainants.
Charles K. Cobb, for executors and trustees.
This is a petition by five of the seven residuary legatees under the will of Ezekial J.M. Hale for a partial distribution of the residuary estate. Of the other two, one consents to a distribution, and the other does not object. It is agreed that the debts have all been paid, and also all of the legacies, so far as they have become due and payable. The executors and trustees and certain of the life annuitants object to a distribution. The residuary clause is as follows "As to the residue and remainder of all my estate, both real and personal, not herein otherwise disposed of, it is my will that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors, well and safely invested, until the decease of the last survivor of the life annuitants named in my foregoing will, and that then the said residue and remainder with all the accumulated interest thereof, shall be equally divided amongst my grandchildren per stirpes, to hold to such grandchildren so distributed, and to their heirs, executors administrators, and assigns, forever."
The first question is whether the interest which the grandchildren take is a vested or contingent one. If it is vested, then the further question will remain whether this court has power to order the distribution prayed for, and, if it has, whether it should do so. If it is contingent, then it is manifest that this petition cannot be maintained. The grandchildren may not become entitled to what they now seek to have distributed. This will has been before this court twice,--in Hale v. Hale, 137 Mass. 168, and Wardwell v. Hale, 161 Mass. 396, 37 N.E. 196. In neither of those cases, however, was the question presented which has now arisen. It has also been before the courts of New York and Illinois. Hobson v. Hale, 95 N.Y. 588; Hale v. Hale, 125 Ill. 399, 17 N.E. 470; Id., 146 Ill. 227, 33 N.E. 858. In the case in New York the precise question arose which now comes before us, and it was held that the interest was contingent; the result being that the residuary clause was declared void so far as it related to certain real estate situated in that state, and the grandchildren took as heirs at law, because, in that view of the case, the power of alienation was suspended beyond the period fixed by statute in that state. That decision is not binding upon us, and it may be that the law as to what constitutes vested and contingent interests is different in that state, by reason of the statute, from what it is in this state. Moore v. Littel, 41 N.Y. 66; Hennessy v. Patterson, 85 N.Y. 91; Gray, Perp. §§ 107, 108; 4 Kent, Comm. (12th Ed.) 203, note 1. But it would be unfortunate if the clause should receive opposite constructions here and there, though that consideration would not justify a conclusion at variance with the principles that have been heretofore established in this state. We think, however, that the decision by the New York court of appeals was correct according to the rules of the common law, and that the interest created by the residuary clause must be regarded as a contingent, and not as a vested, one. The reasons which have led us to this result are as follows: In the first place, what is to be distributed among the grandchildren will consist, not only of the residue, and of the legacies that may fall in, but also of the accumulated interest. Plainly, this last could not vest at the testator's death; and that tends to show that the vesting of the whole was postponed till the arrival of the event on which the distribution is made to depend. Hall v. Hall, 123 Mass. 120, 124. In the next place, the scheme of the will intends, we think, a contingent interest. The testator provides for his widow and children and grandchildren, and gives various legacies and life annuities, and then, contemplating that a portion of his estate remains undisposed of, and looking forward to the time when the last life annuity shall have ceased, and the residue be free for distribution, he directs his trustees then to divide the residue and remainder, with its accumulated interest, equally among his grandchildren. What grandchildren? It seems to us more reasonable to suppose that a class consisting of his surviving grandchildren was meant than that the grandchildren living at his death were intended. It is true that there are no words of survivorship, but it is as if the testator took his stand at the time of the death of the last life annuitant, and said, "I direct the remainder and its accumulations to be divided among my grandchildren," in which case no words of survivorship would be necessary, and those living then would take. The further words, "their heirs, executors, administrators, and assigns," do not describe or identify those who take, but the quantity of the estate which the legatees take, whoever they may be. Thomson v. Ludington, 104 Mass. 193. Again, there are no words of present gift, as there are in many of the cases in this state in which an interest has been held to be vested, and as there are in other clauses of the will respecting other legacies, showing that the testator knew how to use apt words for that purpose. The omission of words of present gift, taken in connection with the provision that the care and control of the residue and remainder are to remain in the executors and trustees, and their successors, and that the residue is unascertainable till the time for distribution arrives, also tends, it seems to us, to show that, not only was it the intention of the testator to postpone possession, but also the acquisition of an absolute interest.
It is true that this construction leaves the remainder without any limitation over, if no grandchild survives the last life annuitant, and that the children of any grandchild dying before the last life annuitant will not share in the distribution. It is also true that the law favors vested, rather than contingent, remainders. But the testator nowhere manifests an intention to provide for his great-grandchildren, either before or after the death of the last life annuitant, and in providing for his children and grandchildren he has carried his regard for his descendants as far as the law would have carried its regard for them if he had unintentionally omitted a child from his will, and he well may have been content with that. ...
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Barker v. Monks
...196 Mass. 35, 38-40, 81 N.E. 654. Some of the respondent appellants maintain that the instant case is governed by Hale v. Hobson, 167 Mass. 397, 45 N.E. 913. We think that case is distinguishable. That case had already come before the courts of New York where it had been held that the remai......
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...her intention not only to postpone possession and enjoyment but also to postpone the acquisition of a vested interest. Hale v. Hobson, 167 Mass. 397, 399, 45 N.E. 913;Crapo v. Price, 190 Mass. 317, 322, 323, 76 N.E. 1043;Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 39, 81 N.E......
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Barker v. Monks
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