Meserve v. Haak

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: MORTON, J.
• Citation: Meserve v. Haak, 191 Mass. 220, 77 N.E. 377 (Mass. 1906)
• Decision Date: 07 March 1906
• Parties: MESERVE v. HAAK et al.

191 Mass. 220

77 N.E. 377

MESERVE v. HAAK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

March 7, 1906

COUNSEL

H. M. Aldrich, for L. Y. Haak, Isaac H. Meserve Alice M. Rankin, and Geo. M. Wetherbee.

Chas M. Hemenway, for guardian ad litem.

Edwin G. McInnes, for executor.

OPINION

MORTON, J.

This is a petition for instructions by the trustee under the will of one Andrew T. Meserve. The clause which he seeks to have construed is the residuary clause and is as follows: 'All the rest, residue, remainder, and reversion of all my estate and property, real, personal, and mixed, of which I shall die seized or possessed, or to which I shall be entitled at the time of my decease, I give, devise, and bequeath to my said trustee, Isaac H. Meserve, in trust, for the following uses and purposes, that is to say: To collect the rents, income and profit, and interest thereof and first paying all taxes, charges, and insurance thereon, and all repairs and any other expenses incident to the proper care, management, and preservation of the said property, to pay over the same as often as quarter yearly to my children, and grandchildren now living, or who may be living at the time of my decease, in equal shares and proportions, for and during the natural life of each of my said children. Upon the decease of the last surviving one of my children, I direct my trustee, or whoever shall then be my trustee, to convey all the remaining part of my estate hereinbefore conveyed to him, together with any income of the same remaining in his hands, to the heirs and legal representatives of my deceased children, in equal shares, according to the number of my deceased children so represented, such heirs and legal representatives taking by way of representation, and not according to their number.' At the time of the execution of the will, and at the death of the testator, he had three children and two grandchildren living. One of the children, Daniel S. Meserve, has since died leaving a widow, but no issue. The trust continues, it is to be observed, till the death of the last survivor of the children, and the question is, what is to be done in the meantime with the share of the income that was paid to Daniel during his life. There are three possible constructions. Either the share that would have gone to Daniel may be held to accumulate till the death of the last survivor of the children and then be divided as a part of the trust estate amongst those entitled to the trust estate; or it may be paid to the legal representative of Daniel; or it may be distributed amongst the surviving children and grandchildren. Which of the last two constructions should be adopted would depend on whether the gift is to be regarded as a gift to the children and grandchildren as tenants in common, or as a class.

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