Shattuck v. Wall

• Decision Date: 06 July 1899
• Citation: 174 Mass. 167,54 N.E. 488
• Parties: SHATTUCK v. WALL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 167

54 N.E. 488

SHATTUCK v. WALL et al.

Supreme Judicial Court of Massachusetts, Worcester.

July 6, 1899

COUNSEL

Albert Poor, for J.W. Dunlop.

H.E Hill, for James H. Wall and others.

OPINION

MORTON J.

Since the decision in Shattuck v. Balcom, 170 Mass. 245 49 N.E. 87, Mrs. Dunlop has died without leaving any issue and the question now is whether the one-fifth of the income to which, in that case, it was held that she was entitled, goes to her administrator, or is to be divided among the children of George F. Wall and James H. Wall, Jr. The latter contend that the gift was to them and Mrs. Dunlop as a class, and that upon her death, or the death of any one of the class, the survivors take. The administrator contends that it vested in her as a tenant in common, and that it passes to him.

The testator, in the clause which is under consideration, expressly provides for the death of a grandchild leaving issue, by directing that the child or children of any child or children of his sons and of Mrs. Balcom shall take, by right of representation, the share which the child or children of his sons and daughter would have taken. But there is nothing either in this clause or elsewhere in the will to show that the testator contemplated the death of a grandchild without issue before the final distribution of his estate, and after any portion of the estate should have vested in it. How he would have provided for such a contingency is wholly a matter of conjecture, and we must take the will as we find it. In Shattuck v. Balcom, supra, it was held that, after Mrs. Balcom's death, the income which had been paid to her during her life should be paid, as it was provided in the earlier part of clause 4 that the unexpended balance there spoken of should be paid, namely, "to the children of my three children, George F. Wall, Sarah Elizabeth Balcom, and James H. Wall, Jr., share and share alike, the child or children of any deceased child or children of said George F. Wall, said Sarah Elizabeth Balcom, and James H. Wall, Jr., to take by right of representation." Whether the share which it was held was thus given to Mrs. Dunlop vested as of the death of the testator or as of the death of Mrs. Balcom it is not necessary now to determine. It certainly vested at one or the other of those dates, and whichever it was can make no difference to the question whether, on Mrs. Dunlop's death, it passed to her administrator, or whether the children of George F. and James H. Wall took it as survivors.

There are no words of survivorship in the clause which is the subject of our immediate consideration. But, notwithstanding that if the gift had stopped with the words "to the children of my three children, George F. Wall, Sarah Elizabeth...