Lovering v. Lovering
Nathaniel P. Lovering & another, trustees v. Nathaniel P. Lovering & others
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Opinion of the Court
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Morton, J.
The thirteenth clause of the will of Joseph Lovering, in regard to which the plaintiffs by this bill seek the instructions of the court, was considered in Lovering v. Worthington, 106 Mass. 86 ; and it was held that the limitation of life *100 estates to the children of Mrs. Nancy Gay after her decease was not void for remoteness. The question now presented, which has arisen by the subsequent death of her son, George H. Gay, whether the limitation over of the fee to the heirs at law of the children of Mrs. Gay is void, was not considered. It is conceded that, if the devise of life estates to the children of Mrs. Gay would include children born after the death of the testator, the limitation over to the heirs of such children is void for remoteness. We are of opinion that it would include after-born children. It is a testamentary gift to a class which is made by the testator to take effect at a period later than his death. The general rule is that those who come within the description before the gift is to take effect will be included within the class as being within the intention of the testator. We see nothing in this will which indicates that it was the intention of the testator that this rule should not apply in its construction. His purpose was to make provision for all his grandchildren who should be living at the death of their respective parents. He makes the same provisions substantially in favor of his sons Nathaniel and Joseph and their children, the latter of whom had in fact several children born after the death of the testator. There is no rule of construction by which these after-born children can be excluded from the bounty of their grandfather. It is true that it was not probable that Mrs. Gay would have after-born children; but it was possible, and the question of remoteness must be determined with regard to possible events, and not to those which actually or may probably occur. We are, therefore, of opinion that the limitation over to the heirs at law of the children of Mrs. Gay is ii violation of the rule of law against perpetuities, and is void.
This being so, the estate thus limited over passes under th« residuary clause of the will. A general residuary gift carries all property which is not otherwise disposed of by the will, and includes all lapsed legacies and all void legacies. Bigelow v. Gillott, 128 Mass. 102 . In this case, the residuary gift is of “ all the rest, residue and remainder of my estate, real and. personal, of every nature and description.” The fact that he specifies certain remainders and reversions. as included within this general description, does not limit or narrow it. It was plainly intended, as is said in a later part of the same clause, to include *101 “ all my property and estate not bequeathed or devised in this will, whether in possession or reversion.” Such a clause includes void legacies, in the absence of any evidence of a distinct intention to the contrary. This subject is fully discussed in Thayer v. Wellington, 9 Allen, 283 , which, upon this point, is decisive of the case at bar. We do not understand that there is any controversy as to the proper disposition of this share of which George H. Gay was the life tenant, and which has now fallen into the residuary fund. The provisions of the residuary clause are clear and explicit. As one only of the five children of the testator is now living, one fifth of the fund is to be held in trust for his benefit during his life. The remainder is to be divided into four parts, of which one part is to be distributed in the same manner as if it had formed a part of the residuary fund at the death of William Lovering, and the other three as if they had respectively formed parts at the respective deaths of Nancy Gay, Caroline Worthington and Joseph Lovering; and each part is to be divided among all the grandchildren of the testator living at said respective times, and the lineal descendants of any deceased grandchildren, if any, the grandchildren to take equally per capita, and the lineal descendants of any deceased grandchild to take in right of representation of their deceased parent, that is, the share which their parent would have taken if living.
Decree accordingly.
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