Hall v. Hall

• Decision Date: 06 September 1877
• Citation: 123 Mass. 120
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Francis A. Hall & another v. Lydia Y. Hall & others

123 Mass. 120

Francis A. Hall & another v. Lydia Y. Hall & others

Supreme Court of Massachusetts

September 6, 1877

[Syllabus Material]

Suffolk. Bill in equity by Francis A. Hall and Henry A Whitney, executors of, and trustees under, the will of Andrew T. Hall, to obtain the instructions of the court.

The will, dated July 9, 1875, and admitted to probate January 3 1876, after bequeathing and devising the residue of the testator's estate to his wife for life, and, after her death, to his daughter absolutely, contained, besides other provisions not material to be stated, the following:

"I also give and bequeath to the said Francis A. Hall and Henry Austin Whitney, if they or either of them shall be living at the time of my decease, the sum of five thousand dollars, in trust. The whole shall form a fund which shall properly be invested, and to accumulate until my said grandchildren last mentioned respectively attain the age thirty-five years, when a proportionate part of said fund and accumulation (dividing by the number of said grandchildren then living who shall not have received their share) is to be paid over to each of them; and in case of the last beneficiary, before attaining the age of thirty-five years, I direct that the remainder of said fund and accumulation be considered as part of the residue of my estate, and be subject to the disposition of the same heretofore made." The will contained no prior mention of any grandchildren.

The bill alleged, and the answers admitted, that the testator died on November 22, 1875, leaving a widow, Lydia Y. Hall, a daughter, Mary A. H. Munroe, who was born on or about August 19, 1829, and was a widow, (her husband having died in December, 1870,) and seven grandchildren, and presented the question whether the bequest to the executors as trustees was not void for uncertainty and remoteness. Hearing upon the bill and answers before Devens, J., who reserved the case for the consideration of the full court.

Bequest to the widow of the testator, and paid to her a part of the residue.

F. Dabney, for the widow and daughter.

L. S. Dabney, for the grandchildren. 1. The bequest is not void for uncertainty. 1 Jarman on Wills, 329-333. 2 Ib. 108-111.

2. A bequest by a testator to living grandchildren, to be distributed among them when they severally attain the age of thirty-five years, is not open to objection as creating a perpetuity, and no perpetuity can be evoked here, without assuming that Mrs. Munroe may marry again and give birth to some more children after the death of the testator, and that such after-born children will be entitled to share in the bequest, either upon the ground that the bequest to the grandchildren is contingent upon their respectively attaining the age of thirty-five years, or, if vested at the testator's death, that the period of enjoyment is postponed to a later date. The admission of after-born children to a share, in cases of bequests to children, is founded upon a presumption that the testator might naturally have contemplated the possibility of other children, and that it is his will that they should share. They come in when such is the clear intention of the will. Hatfield v. Sohier, 114 Mass. 48. Nothing is more improbable, under the circumstances of this case, than that any such possibility ever entered the mind of the testator.

The bequests to the grandchildren of the testator vested, at his death, in those then living, subject to be divested by their death before reaching the age for enjoyment, and, if it was also subject to open to let in after-born grandchildren, it would vest in such after-born grandchildren upon their birth; and, as no grandchild could be born after Mrs. Munroe's death, the whole estate must vest within the time limited by the rule. This must be the construction of the will, because it is a possible construction, and one which would carry out the will of the testator, while to construe the estate as contingent would defeat that will, and because it is in harmony with the decisions of this court. Packard v. Packard, 16 Pick. 191. Blanchard v. Blanchard, 1 Allen 223. Loring v. Blake, 98 Mass. 253. Pike v. Stephenson, 99 Mass. 188. Gardiner v. Guild, 106 Mass. 25. Lovering v. Worthington, 106 Mass. 86. Hatfield v. Sohier, 114 Mass. 48. 1 Jarman on Wills, 260.

If by assuming that more grandchildren may be born, and by adopting a construction which admits them to share, the period of accumulation permitted by the rule may be exceeded by giving effect to the directions of the will, this will be the result: the direction to accumulate and the limitation over are void; there is a bequest "in trust for my grandchildren;" those living at the testator's death will be entitled to the immediate enjoyment and an immediate conveyance, because the estate of the trustees will be merely a naked trust to receive the money; and any grandchildren born after the testator's death will be excluded. Odell v. Odell, 10 Allen 1. Sears v. Putnam, 102 Mass. 5.

If the court construes the gift as one to all the grandchildren of the testator, living at his death or born afterwards, and contingent upon their respectively attaining the age of thirty-five years, the case which then arises...