Thompson v. Thornton

• Decision Date: 25 February 1908
• Citation: 197 Mass. 273,83 N.E. 880
• Parties: THOMPSON v. THORNTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

197 Mass. 273

83 N.E. 880

THOMPSON v. THORNTON.

Supreme Judicial Court of Massachusetts, Middlesex.

February 25, 1908

COUNSEL

H. L. Boutwell and W. H. Hastings, for petitioner.

Frederick E. Austin, for respondent.

OPINION

RUGG J.

The question to be determined is the distribution of the residuary estate of Isaac H. Burditt, who died in April 1903, at the age of 79 years. The next of kin are twelve nephews and nieces and seven grand nephews and nieces, the issue of the two deceased nieces, all being the descendants of one brother and two sisters of the testator. His son Isaac F., mentioned in the will and living at the time it was executed, predeceased the testator. The prefatory clause of the will shows a plain intent to dispose of all his property. The only other clause now material is as follows: 'All the rest and residue of my estate real and personal or mixed I bequeath to Charles Emerson Stevens of Marlborough in our county of Middlesex and William B. Batchelder of Boston in our county of Suffolk, both in our commonwealth of Massachusetts, but in trust to be used and expended by said trustees for the comfortable support and maintenance (and including funeral expenses) according to their best judgment of my infirm son Isaac Frederick Burditt of said Malden during his life, and at his decease to pay and distribute after paying their expenses of said trusteeship, the residue of my estate, if any thereof shall be left, in equal shares to my relatives, by right of representation under the statutes of this commonwealth.'

The first point argued is that this bequest to relatives is contingent upon the happening of the death of Isaac Frederick Burditt and a balance of the trust fund remaining in the hands of the trustee after his death, and that, as Isaac Frederick died during the life of the testator, this contingency can never happen, and the legacy has lapsed. McGreevy v. McGrath, 152 Mass. 24, 25 N.E. 29, decided that when a testamentary provision is so framed as to take effect only upon the happening of a certain event, and it is clear that the designated event can never happen, then the will cannot take effect. Where one makes a will conditioned to take effect only in the event of the testator's decease during a particular journey, and he has a safe return home, there is then no will. But that principle had no application to the facts here presented. This is the ordinary case of a devise over after the termination of an interest for life. The death of the life tenant before the testator simply accelerates the time when the devise over becomes operative. Prescott v. Prescott, 7 Metc. 141; Bates v. Dewson, 128 Mass. 334. The fact that under the terms of the trust, the estate might be so administered that there would be no remainder makes no difference with the rules of law which govern the interpretation of the will.

The next doubt suggested is as to the meaning of the testator in employing the words, 'in equal shares to my relatives, by right of representation under the statutes of this commonwealth.' Although relatives, as popularly used, is a word of...