Manning v. Manning

• Decision Date: 28 February 1918
• Citation: 229 Mass. 527,118 N.E. 676
• Parties: MANNING et al. v. MANNING et al. SAME v. WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

229 Mass. 527

118 N.E. 676

MANNING et al.

v.MANNING et al.

SAME

v.WALKER.

Supreme Judicial Court of Massachusetts, Middlesex.

Feb. 28, 1918.

Case Reserved from Supreme Judicial Court, Middlesex County.

Petitions for instructions by William W. Manning and others against James H. Manning and others and Clifford H. Walker, guardian ad litem and next friend of Wayland M. Minot, Jr. From the decree James H. Manning and others, and the guardian ad litem, etc., appeal, the appeals being consolidated. On reservation for the determination of the full court. Decree affirmed.

G. Philip Wardner, of Boston, for Wayland Manning and others.

Reginald L. Robbins, of Boston (L. L. Scaife, of Boston, of counsel), for Reginald L. Robbins, guardian ad litem of James H. Manning and others.

Clifford H. Walker, of Boston, for Wayland M. Minot, Jr.

DE COURCY, J.

Prentiss Hobbs died August 28, 1858, leaving an estate worth about one hundred and twenty five thousand dollars. His wife pre-deceased him; and he was survived by his four children, Abby R. (Manning), Lydia, Joshua B. F., and Elizabeth L., born respectively in the years 1831, 1836, 1837 and 1839. A grandchild, Prentiss Hobbs Manning, also survived him, and Mrs. Manning was the only one of the testator's children then married.

The will of Mr. Hobbs was executed ten days before his death. He bequeathed his estate, subject to the payment of his debts, to trustees; provided an annuity of $50 for his mother-in-law, Mrs. Lincoln; and directed the trustees to pay out of the income one thousand dollars a year to each of his daughters, and six hundred dollars a year to his son, during their several lives. He then directed as follows:

‘6th. On the decease of either of my said four children, leaving issue or descendants of such issue, then in trust, to pay to such issue or descendants, annually, in quarterly instalments, the sum hereinbefore given to the parent of such issue or descendants-until the decease of the last survivor of my said four children-and

‘7th. Upon the decease of the said last survivor, then in trust, to convey and deliver to all my then surviving grandchildren and their issue, all my said estate and property, with the increase thereof in equal shares-in fee simple and full property, forever.’

Mrs. Lincoln has deceased. The last survivor of the testator's children, Elizabeth L. (Howe), died on February 27, 1916; and all of them except the son, Joshua B. F. Hobbs, left issue surviving them. The only question now presented on this petition for instructions is, who were entitled to the principal of the trust estate at the death of the last life tenant? The contention of the fifteen surviving grandchildren is that the estate should be distributed among them, in equal shares per capita. The guardian ad litem for the minor great-grandchildren contends that the estate should be conveyed to or distributed among the testator's then surviving fifteen grandchildren and sixteen great-grandchildren in equal shares per capita. The guardian ad litem for Wayland M. Minot, Jr., argues that the estate should be divided among the fifteen grandchildren, the sixteen great-grandchildren, and the one great great-grandchild living at the death of the last life tenant, in equal shares-each taking one thirty-second part. As the position of both guardians ad litem is the same, except in the one respect of the extent to which generations more remote than great-grandchildren may be included within ‘issue,’ we shall embrace the contentions of both when dealing with the great-grandchildren, unless otherwise stated.

At the threshold, it is apparent that the interpretation proposed by the great-grandchildren would lead to unreasonable and inequitable results. By allowing the grandchildren and great-grandchildren to take simultaneously it admits children to compete with their living parents,-a construction to be avoided unless such plainly was the testator's intention. Dick v. Lacy, 8 Beav. 214, 221. Audsley v. Horn, 29 L. J. Ch. (N. S.) 200. Further, although on the death of either of the testator's children during the fifty-seven years preceding the death of the last survivor, Mrs. Howe, the ‘issue or descendants' of such deceased child would succeed to the parent's share of the income under article sixth of the will, yet on the death of Mrs. Howe the issue of any deceased grandchild would not only be excluded from all share in the principal, but the income which they had been receiving would be cut off. The proposed construction also would involve some surprising discriminations in individuals and families. For instance, as only the issue alive at the death of the last life tenant can take, children born to the grandchildren after the period of distribution would be excluded, while their brothers and sisters born before that period would take directly under the will. Again, as pointed out by counsel, at the death of the last life tenant, the grandson, Herbert H. Howe, was as yet unmarried, whereas his older brother, William P. Howe, had six children. Under this construction the family of William would get seven parts while that of his brother would get but one; and the entire family of another grandson, Wayland Manning, would get but two, as he had only one child at the death of the last life tenant.

An intention so capricious and inequitable should not be attributed to a testator, who admittedly was ‘a kind father,’ and whose ‘relations with the children were affectionate,’ unless it is plainly manifested by the language of his will. It is not decisive that the strict grammatical construction of a separate clause would warrant the conclusion urged on behalf of the great-grandchildren. As was said in Boston Safe Deposit Co. v. Coffin, 152 Mass. 95, 98, 25 N. E. 30, 31 (8 L. R. A. 740):

‘The general principles which apply to the construction of a clause similar to the one in question are well settled. While care must be taken that courts do not...