Pike v. Stephenson

A devise recited that the testator gave to his daughter, (who, with her children, survived him,) land for her life, “and, in the event of her decease, I do then give the same in equal shares to her children and their heirs and assigns.” Held, that the devise over gave to her children vested remainders in fee simple.

Petition for partition of a house and land on Myrtle Street in Boston, formerly owned by Daniel Gregg, whose will, besides other devises and bequests not material to be quoted, contained the following: “ Fourth. I give, devise and bequeath unto my daughter, Mary N. Pike, the use and improvement of my house on Myrtle Street in the city of Boston, and the lands, outbuildings and appurtenances connected therewith, to hold during her natural life; and in the event of her decease, I do then give, devise and bequeath the same in equal shares to the children of said Mary N. Pike, and the children of any deceased child of said Mary N. Pike, who shall take the parent’s share by representation, to hold to them and their heirs and assigns forever.” “ Ninth. I give, devise and bequeath unto my said daughter Mary N. Pike, if she shall be living at the time of my decease, all the rest and residue of my estate, both real and personal, to hold the same to her, her heirs, executors and administrators; but in case she shall die before me, then I give, devise and bequeath the same to the children of said Mary N. Pike, who shall then be living, and to the child or children of any deceased child of said Mary N. Pike, who shall take by representation the shares of their respective parents.” Mary N. Pike, the testator’s daughter, and her husband, the petitioner, had two children living at the date of the will and of the testator’s death, namely, Daniel G. Pike, (who died, of age, unmarried, and without having made any conveyance of the premises,) and the respondent. Mary N. Pike survived her son, and died before this petition was filed. The petitioner contended that the interest of bis children under the fourth clause of the will vested immediately upon the death of the testator, and claimed one undivided half of the house and land in Myrtle Street by inheritance from his son. The respondent contended that the remainder was contingent until Mrs. Pike’s death, and then went to the respondent as her sole surviving child. The parties submitted the case above stated to the judgment of the court.