Hall v. Hall

Morton, J.

Before the clause presented for our consideration, the will makes no mention of any grandchildren. The clause is, therefore, void for an uncertainty, or the words “ said ” and ‘ last mentioned ” must be rejected as inadvertently usedj *124 and the clause be construed as a bequest to his grandchildren as a class. Adopting the latter construction, as most favorable to the grandchildren, and as most probably carrying out the intentions of the testator, the question is presented whether the bequest is void because it violates the rule against perpetuities.

It is a testamentary gift to a class of persons, which is made by the testator to take effect at a period beyond the time of his death; and the general rule applies, that those who come within the description, before the period or event upon which the gift is to take effect or the distribution is to be made, will be included as within the probable intention of the testator. Therefore any grandchild of the testator who might be born after his death would be entitled to a share of the fund. Fosdick v. Fosdick, 6 Allen, 41 , and cases cited. Worcester v. Worcester, 101 Mass. 128 . Hatfield v. Sohier, 114 Mass. 48 . And we are of opinion that under this bequest the grandchildren of the testator take contingent interests, which do not vest until they respectively arrive at the age of thirty-five years. There is no provision for their maintenance, or for any enjoyment by them of the principal or income of the trust fund, until they reach the prescribed age; the accumulations accrue after the death of the testator, and could not vest at that time ; the persons who are to take at the period of distribution and the amounts to which they may be entitled are uncertain; and the clause contains a gift over in case the last surviving grandchild shall die before reaching the age of thirty-five years. All these considerations point to the conclusion that it was the intention of the testator that the interests of the grandchildren should not vest until the contingency of their arriving respectively at the prescribed age should happen.

This being so, the gift is void for remoteness. The rule is that executory limitations are void unless they take effect ex necessitate and in all possible contingencies within the period of a life or lives in being at the death of the testator and twenty-one years afterwards. Sears v. Putnam, 102 Mass. 5 , and cases cited.

In the case at bar, at the death of the testator, it was possible that his widowed daughter might marry again and have a child, and that the daughter and all the grandchildren of the testator living at his death might die, and that these events might happen before the oldest grandchild reached the age of thirty-five years, *125 or even within one or two years of the death of the testator. In this contingency the' after-born grandchild would be the sole beneficiary entitled to the trust fund, and it would not vest in him until he arrived at the age of thirty-five years. Therefore the fund might be inalienable for a period longer than any life in being at the death of the testator and twenty-one years in addition, and the bequest is void under the rule against perpetuities. Thorndike v. Loring, 15 Gray, 391 .

This bequest being void, it is clear that the sum bequeathed falls within the residuary devise and bequest to the widow of the testator, and should be paid to her as a part of the residue.

Decree accordingly.