Merriam v. Simonds

Devens, J.

The fifteenth clause of the testator’s will provides that if both of his sons should die without issue, all the estate devised for their benefit should be divided among certain nephews and nieces “ during their natural lives, and after their decease to be equally divided among their children or legal representatives.” The devise to the nephews and nieces has already been decided to be one which would take effect and not be void for remoteness. Simonds v. Simonds, 112 Mass. 157 . What were the rights of “their children or legal representatives,” upon the death of such nephews and nieces, it was not necessary there ‘-o discuss, nor was it necessary to inquire what was the amount of the fractional shares which the nephews and nieces respectively took in the estate of the testator.

If the devise over to “ the children or legal representatives ” was void, upon the ground that there might have been- an unborn child of an unborn nephew or niece provided for thereby, in violation of the rule against perpetuities, so that the intent c£ *201 the testator could not have been carried out. consistently with well settled principles, such devise was expressed with sufficient clearness. Those only who could take advantage of this invalidity were the heirs at law of the testator, to whom, after the life estates of the nephews and nieces, the possession of the property, thus attempted to be devised, would descend, and who would in the mean time hold this remainder as undevised estate. When there is a devise over upon the occurrence of some future event, which is to determine the prior estate devised, and such devise cannot take effect, the estate is left in the prior taker as if such devise over had not been made. When the prior estate is however determined by its own .limitation, independently of any devise over, and the succeeding devise cannot take effect, the remainder continues in the heir at law as undevised estate. The heirs at law of the testator were his two sons, and upon the death of Albert his right to this remainder, if there were any, descended to his brother George. Upon George’s death, the whole right descended to his half brother and half sister. From them Jonathan B. Simonds, who is a party to this proceeding, has received a conveyance of all their rights, for the benefit of those who were the intended beneficiaries under the will. In the case stated, the parties have in effect agreed that the sum paid for that conveyance shall be allowed out of the proceeds of the estate when sold, and that the estate shall be deemed to be held according to the intention of the testator, without regard to any question of invalidity for remoteness. The rights of the parties may therefore be disposed of irrespectively of any question as to the legal validity of the devise over after the life estates of the nephews and nieces.

The nephews and nieces, to whom life estates were devised upon the death without issue of the testator’s two sons, were the children of certain brothers and sisters named. Of these nephews and nieces twenty-three were in esse at the death of the testator, but, at the time when the event occurred upon which they were entitled to the enjoyment of the estate, only eleven were living. The question is therefore presented whether the estate should be divided according to the number of those who were living at the death of the testator, or at the time of .the occurrence of the contingency.

*202 The devise over was to a definite class of persons, who were to +u,kc life estates upon the occurrence of a particular event, and the general rule is that those take who constitute the class, not when the event occurs, but when the devise becomes operative by the death of the testator. Winslow v. Goodwin, 7 Met. 363 . Abbott v. Bradstreet, 3 Allen, 587 . Houghton v. Kendall, 7 Allen, 72 . Where a different intent is manifested, it is of course to be regarded. Dixon v. Picket, 10 Pick. 517 . Olney v. Hull, 21 Pick. 311 . Thomson v. Ludington, 104 Mass. 193 . ISTo such intent is here shown, and, as each life estate devised to a nephew or niece was followed by a devise to his or her children, or personal representatives, it is strongly indicated that the testator intended that all embraced in the class at the death of the testator should take. Whether there would be a failure of issue of the two sons was of course a contingency; but it was not a part of any contingency, by which the life tenants were affected, that they should survive the sons when such failure occurred, although they could not enjoy the estates devised to them unless they did. The ownership of a contingent interest may vest so that it will descend to the heir of the person to whom it is given if he should die before the contingency occurs, where it is an interest which survives him. Where it is not of that character, it is alike property, and he may convey it so that his grantee will take that which he himself has, namely, the right to enjoy the estate if the contingency occurs. The right which one may have under an executory devise is transferable, and, where it is not affected by the death of the executory devisee, it is also devisable. Winslow v. Goodwin, ubi supra. Whether the estates which the nephews and nieces were to take are to be regarded as contingent remainders or executory devises, they are still estates and not mere possibilities.

Nor, even if the devise would have opened so as to let in after-born nephews and nieces, had there been any such, who answered the description given by the will, are the life estates the less on that account to be determined at the death of the testator, even if the subsequent enjoyment was contingent. Bowers v. Porter, 4 Pick. 198 . Moore v. Weaver, 16 Gray, 305 .

There was no after-born nephew or niece, a child of either of the-testator’s brothers and sisters named, but there had been a *203 nephew, a son of one of the brothers named, Humphrey Simonds, who had deceased leaving issue before the making of the will. On behalf of his daughter, Mrs. Putnam, it is urged that the estate should be divided into twenty-four shares, and not twenty-three as indicated by the number of such nephews and nieces living at the death of the testator, and that she is now entitled to such share in fee as her father would have been entitled to for life, if he had been living at the death of the testator. Such a construction would regard the intent of the testator as manifested to provide for the descendants of the nephews and nieces as a class, in case his own children died childless, and would treat the life estates as of only secondary importance. But the life estates determine the shares into which the property is to be divided. When the will became operative by the death of the testator, if the contingency had then occurred upon which the life estates were limited, Humphrey Simonds was incapable of taking. The testator, after devising the life estates, and describing those who are to take them, adds, “ and after their decease to be equally divided among their children or legal representatives,” and the equal division contemplated is a subdivision among the children or legal representatives of each individual life tenant as his estate terminates by his death. The words “ after their decease,” are to be construed as meaning “ upon the death of each life tenant.” Had the testator intended to provide as a class for his grand nephews and nieces upon the termination of the life es ■ totes, the words “ legal representatives ” would not have been introduced. As her ancestor could take no share of the estate as life tenant, there is nothing to which Mrs. Putnam can succeed as his child. Christopher son v. Naylor, 1 Meriv. 320. Parker v. Tootal, 11 H. L. Cas. 143.

It is also contended by one of the parties that the estate of the testator should be divided into four shares, thus representing each of the testator’s brothers and sisters named, and that these shares should then be subdivided according- to the number of nephews and nieces in each family, and the shares in which there was a life estate thus determined. This would, however, be erroneous. Although certain brothers and sisters are named, this is not for the purpose of separating the nephews and nieces into distinct classes, but for the purpose of describing them all as a *204 class, and thus distinguishing them from nephews and nieces, who were children of brothers and sisters not named.

We are therefore of opinion that the estate should be divided into twenty-three shares; that there is no share which Mrs. Putnam can take; and that the petitioners, Mrs. Merriam and Mrs. Stetson, are entitled to life estates in two twenty-third parts, as two of the twenty-three nephews and nieces described by the testator; and, as heirs of five of their brothers and sisters, entitled to take under the will, and deceased since the testator, they are entitled as tenants in common in fee to five twenty-third parts in which such brothers and sisters had estates for life.

Judgment affirmed.