Taggard v. Piper

Endicott, J.

By the thirteenth clause of the will, William T. Piper is entitled to receive one third of the residue of the testator’s estate.. By the twelfth clause, it is provided that if he shall decease leaving no issue, nor father, and no brother or sister living, the property bequeathed to him by the will shall descend in equal shares to his mother, and the children of any deceased brother or sister, by right of representation.

This bill is brought by the executors for instructions; and the question raised is, whether the executors shall pay over to William T. Piper one third of the personal property bequeathed to him under the thirteenth clause, or hold the same in trust during his natural life, or pay it over to trustees for him, and thus provide for the contingency mentioned in the twelfth clause. It is not alleged in the bill or answers, and no evidence was offered that there is danger that William T. Piper will waste, secrete or remove the property, if intrusted to his hands.

We are of opinion that no trust was created by these provisions. The case is governed by Fiske v. Cobb, 6 Gray, 144 , where it was held that if a legacy is given generally, but subject to a limitation over, on the subsequent condition of the legatee dying without issue, it is to be paid to him without security *317 unless it is made to appear that there is danger of his wasting, secreting or removing the property. No such question is raised here. It.is therefore unnecessary to consider many of the points argued at the bar upon the effect to be given to the provisions of the twelfth clause.

As the case stands, the executors should pay over to William T. Piper, without security, his share of the residue of the personal estate of the testator. Decree accordingly. ‘