Wardwell v. Hale

• Decision Date: 18 May 1894
• Citation: 37 N.E. 196,161 Mass. 396
• Parties: WARDWELL v. HALE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

161 Mass. 396

37 N.E. 196

WARDWELL v. HALE et al.

Supreme Judicial Court of Massachusetts, Essex.

May 18, 1894

COUNSEL

Nichols & Cobb, for appellants.

Frank L. Washburn and J. Otis Wardwell, for appellee.

OPINION

FIELD C.J.

The seventh article of the will of Ezekiel J. Hale is as follows "Seventh. I give to my son Edward Hale the sum of ten thousand dollars ($10,000), to be paid to him at my decease, if he shall then have arrived at the age of twenty-one years; if he shall not then be twenty-one years old, the same to be paid to him when he shall attain that age. I also give to him the sum of twenty thousand dollars ($20,000), to be paid to him when he shall attain the age of twenty-five years, together with the further sum of twenty thousand dollars ($20,000), to be paid to him when he shall attain the age of thirty years. Also, I give to him the annuity of thirty-six hundred dollars ($3,600), to be paid to him in monthly payments during his life; and at his decease I give to his wife and children, if he shall leave a wife or child alive, the annuity of twenty-four hundred dollars ($2,400), to be paid to them, or either of them, until the final division of the rest and residue of my estate, as hereinafter provided: provided, however, if the wife of my said son shall remarry, her interest in said annuity shall at once and forever cease." The gift of the foregoing legacies to Edward Hale, except the annuity, is in terms absolute, but the time of payment is postponed until the legatee reaches the ages mentioned. Ten thousand dollars is to be paid to him "at my decease, if he shall have arrived at the age of twenty-one years; if he shall not then be twenty-one years old, the same to be paid to him when he shall attain that age." Twenty thousand dollars is "to be paid to him when he shall attain the age of twenty-five years," and the further sum of $20,000 is "to be paid to him when he shall attain the age of thirty years." It seems impossible to distinguish between these legacies, and to hold that the first vested on the death of the testator, and that the last two did not. There is no specific gift over in case Edward Hale dies before attaining the age of 21 years or of 25 years or of 30 years, although there is a gift of the residue by the twenty-second article, which provides as follows: "As to the residue and remainder of all my estate, both real and personal, not herein otherwise disposed of, it is my will that the same be and remain in the care and control of my said executrix and executors and trustees, and their successors, well and safely invested, until the decease of the last survivor of the life annuitants named in...