Robertson v. Robertson

• Court: Supreme Judicial Court of Massachusetts
• Citation: Robertson v. Robertson, 313 Mass. 520, 48 N.E.2d 29 (Mass. 1943)
• Decision Date: 01 April 1943
• Parties: RALPH A. ROBERTSON v. ELLA B. ROBERTSON & another.

313 Mass. 520

48 N.E.2d 29

RALPH A. ROBERTSON v. ELLA B. ROBERTSON & another.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1943

November 10, 1942.

Present: FIELD, C.

J., DONAHUE, QUA COX, & RONAN, JJ.

Devise and Legacy Vested or contingent, Remainder, Alternative provisions. Words, "Then," "Or."

Under's will giving a life estate in land with a power of sale in the life tenant, and providing further that "in case that at the death of the" life tenant the land "has not then been sold then it is to go" to a son, a daughter, and a grandson of the testator in specified shares, "or to the issue of any that may then be dead by the right of representation," the son took a remainder interest contingent upon his surviving the life tenant.

The alternative form of a provision of a will, that, in "case . . . at the death of" a designated life tenant a "homestead estate" had "not then been sold" under a power given by the will, "then" one half part of it was to go to the testator's son and other parts to other designated persons "or to the issue of any that may then be dead," tended to establish that no interest vested in the son where he did not survive the life tenant.

PETITION, filed in the Probate Court for the county of Middlesex on August 26 1941.

The case was heard by Leggat, J., and in this court was submitted on briefs.

S. A. Murphy &amp F.

L. Williams, for the respondent Essie Pope.

J. A. Lovering, for the petitioner.

FIELD, C.J. This petition for partition of certain real estate, in Hudson, was brought in the Probate Court by Ralph A. Robertson and comes before us upon an appeal by Essie Pope, one of the respondents, from a decree of that court for partition.

The case arises upon the following facts which appear in the report of material facts made by the judge: Lillian G. Pope, late of Hudson, died July 12, 1931, leaving a will that has been duly allowed, which contained the following provisions "Fourth; -- To my daughter, Grace M. Morse and her husband, Alvah W. Morse, the use, income and enjoyment of my homestead estate situated at No. 11 Felton

Street, in said Hudson for the term of their natural lives or of the life of the survivor. And I hereby grant to said Grace M. Morse and her husband, Alvah W. Morse, or the survivor of them, if, in their judgement [sic], or, in case of the death of one [of] them, in the judgement [sic] of the survivor, it becomes in their, his or her opinion necessary or expedient, to sell said homestead estate at public or private sale and in their own names, or name, to give a good and sufficient deed of conveyance of the same. The proceeds of such sale to be distributed by them, he [sic] or her, as follows; -- To my son, Ernest F. Pope, or to his issue if he is then dead, one half part. The remainder to go in equal shares to my daughter, Ella B. Robertson, my daughter, Grace M. Morse, my grandson, Ralph A. Robertson and my son-in-law, Alvah W. Morse, or to the issue of said Ella B. Robertson, Grace M. Morse and Ralph A. Robertson, by the right of representation. In case said Alvah W. Morse is then dead and his wife survives him, she is to receive the share which would have gone to him in addition to her own. In case that at the death of the survivor of said Grace M. Morse and said Alvah W. Morse said homestead has not then been sold then it is to go to [sic] one half part to my said son, Ernest F. Pope, one quarter part of [sic] my said daughter, Ella B. Robertson and one quarter part to my said grandson, Ralph A. Robertson, or to the issue of any that may then be dead by the right of representation. Fifth; -- All the rest and residue of my estate to my children, Ella B. Robertson, Grace M. Morse and my grandchild, Ralph A. Robertson, in equal shares, or to the issue of any who may be dead by the right of representation."

The testatrix left surviving her a son, Ernest F. Pope, married to Essie Pope, a daughter Grace M. Morse, married to Alvah W. Morse, a daughter Ella B. Robertson, and a grandson, Ralph A. Robertson, who, it may be guessed, was the son of Ella B. Robertson although the fact does not appear. The son, Ernest F. Pope, died January 26, 1940, leaving a widow, Essie Pope, and no issue. The daughter Grace M. Morse died June 26, 1940, leaving no issue. Her husband, Alvah W.

Morse, had predeceased her. At the time of the death of Grace M. Morse the premises described in the will of the testatrix as her "homestead estate" had not been sold. The record does not disclose what, if any, property the testatrix owned at the time of her death other than the "homestead estate.

"

Ralph A. Robertson, the grandson of the testatrix, brought the present petition for partition of the "homestead estate," referred to in the fourth clause of the will, and upon this petition a decree was entered that partition of the "homestead estate" be made between the petitioner, Ralph A. Robertson, and Ella B. Robertson in equal shares, and a commissioner was appointed to make such partition. The basis of this decree was that Ella B. Robertson and Ralph A. Robertson each took one quarter part of the "homestead estate" under the fourth clause of the will, but that the devise by that clause of one half part thereof to Ernest F. Pope failed by reason of his death before the death of his sister Grace M. Morse, and therefore was disposed of by the fifth or residuary clause of the will in equal shares to Ella B. Robertson, Ralph A. Robertson, and Grace M. Morse, each of whom took under said clause one sixth part of the "homestead estate," and that the one sixth part of the "homestead estate" that passed to Grace M. Morse went "by purchase from the heirs and legatees under" her will in equal shares to Ella B. Robertson and Ralph A. Robertson, so that each of them took by such transfer one twelfth part of the "homestead estate," with the result that in the aggregate Ella B. Robertson and Ralph A. Robertson each was entitled to one half part of the "homestead estate." Essie Pope, the widow of Ernest F. Pope, appealed from this decree, and contends, in substance, that the one half part of the "homestead estate" devised to her husband by the fourth clause of the will did not fail so that this part fell into the residue of the estate, but rather that it was the property of his estate in which she, as his widow, is entitled to share. The record does not show, however, to what extent she, as his widow, was entitled to share in his estate.

The question upon which the case turns is whether under a true interpretation of the will of the testatrix, Lillian G. Pope, and particularly of the fourth clause thereof, her son, Ernest F. Pope, took a vested remainder in one half part of the "homestead estate" subject, in certain events that have not happened, to be divested, so that this one half part of the "homestead estate" became a part of his estate, or, on the contrary, said Ernest F. Pope took a contingent remainder in one half part of the "homestead estate" contingent upon his surviving his sister Grace M. Morse and her husband, Alvah W. Morse, a contingency that did not happen, so that the devise to Ernest F. Pope failed and the one half part of the "homestead estate" fell into the residue of the estate of Lillian G. Pope to be distributed under the fifth or residuary clause of her will. No other question has been argued. The decree of the Probate Court was in accordance with the second of these alternative interpretations of the will, that Ernest F. Pope took only a contingent remainder. The appellant contends for the first of these alternative interpretations of the will, that Ernest F. Pope took a vested remainder.

We think that the decree of the Probate Court was based upon the correct interpretation of the will, that Ernest F. Pope took only a contingent remainder in one half part of the "homestead estate," with the result that, since the contingency upon which it depended did not happen, the appellant, Essie Pope, the widow of Ernest F. Pope, is not entitled to share in the partition of the "homestead estate."

"The `cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.' McCurdy v. McCallum, 186 Mass. 464 , 469. Devine v. Deckrow, 299 Mass. 28 , 31. That intention `is to be ascertained from a study of the will as a whole in the light of the circumstances attending its execution, Crowell v. Chapman, 257 Mass. 492; using ordinary canons of interpretation only so far as they accomplish their purpose of aiding in the determination of that intent[ion] but giving to the few combinations of words which have come to be rules of property their legal effect. Temple v. Russell, 251 Mass. 231 , 236.' Cammann v. Abbe, 258 Mass. 427 , 429." Boston Safe Deposit & Trust Co. v. Park, 307 Mass. 255, 259.

By the fourth clause of the will the testatrix gave to her daughter Grace M. Morse and her husband, Alvah W. Morse, a life estate with survivorship in the "homestead estate" with a power of sale in the life tenants or the survivor of them. This clause contains a provision for distribution of the proceeds of a sale of the "homestead estate" under the power, under which provision Ernest F. Pope, at least if he was living at that time, would have shared in the proceeds. But as Grace M. Morse and her husband, Alvah W. Morse, have died without having exercised the power of sale of the "homestead estate" under this power of sale. We are concerned only with the interest that passed to Ernest F Pope under the provision of the fourth clause of the will: "In case that at the death of the survivor of said Grace M. Morse and said Alvah W. Morse said homestead has not then...