Towle v. Delano

A testator by his will gave the residue of his estate to his brother D., upon the condition and subject to the charge of paying annually to the mother of the testator’s two illegitimate daughters, “ during her life,” a certain sum, and a certain other sum annually to each of the daughters “ so long as both they and their said mother shall all live,” and, upon “the death of either” of the daughters, a larger annuity to the survivor “ during the life of their said mother; ” and further provided that, upon the death of each daughter, D. should pay to her surviving children a sum named, and that, if either daughter should die without leaving issue, D. “ shall retain said sum to his own use.” Held, that the testator’s daughters were entitled to the annuities given by the will only during the life of their mother. Held, also, that, although one of the daughters was unmarried, and fifty-three years and nine months old, and her mother was dead, D. was not entitled to the fund given for the benefit of her issue.

Petition in equity, filed June 7, 1879, under the St. of 1879, e. 125, by the executors of the will of David Miller, for the sale of certain lands for the payment of the charges and annuities created by the will of William Miller, the residuary clause of which was as follows: “ Fifth. I give, devise, and bequeath all the rest, residue, and remainder of my estate, real, personal, or mixed, of which I shall be seised and possessed, or to which I shall be entitled at the time of my decease, to my said brother David Miller, to have and to hold the same to him, the said David Miller, his heirs and assigns forever, upon the condition nevertheless, and subject to the charges and payments following, viz.: that he or his executors, administrators, heirs, or assigns pay annually to Sarah Delano, mother of my two illegitimate children, Maria D. Miller and Almira D. Miller, all of Roxbury, during her life, the sum of two hundred dollars, and the sum of five hundred dollars annually to each of my above-named illegitimate daughters so long as both they and their said mother shall all live, and after the death of either of my said daughters, that he or they pay to the survivor of them, my said daughters, during the life of their said mother, the sum annually of six hundred dollars, and that on the death of my said illegitimate daughter Maria D. Miller, he or they pay to the children of her body, or child of her body if but one, and if more than one in equal shares and proportions, the sum of ten thousand dollars, to have and to hold the same to him, her, or them, to his, her, or their sole use and behoof forever. My meaning is, that the said sum of ten thousand dollars be paid to the child of her body if but. one living, or, if more than one, that the said sum of ten thousand dollars be divided between said children, share and share alike. But if my said daughter shall die, and shall not leave a child living at the time of her death, that my said brother retain said sum of ten thousand dollars to his own use forever. And that-on the death of my said daughter Almira D. Miller, that the said David Miller or his executors, administrators, heirs, or assigns pay to the child or children of her body the sum of ten thousand dollars, and, if there be more than one, child then living, that said children shall receive equal shares or proportions of said sum of ten thousand dollars, to have and to hold the same to him, her, or them, to his, her, or their sole use and behoof forever. But in casé my said daughter shall die leaving no child of her body alive, that my said brother shall retain said sum of ten thousand dollars to his own use.” The case was heard by I)evens, J., and reported for the consideration of the full court, in substance as follows : Portions of the lands originally in question in this cause have been sold from time to time, in accordance with interlocutory decrees of this court, under direction of a special master and by-consent of parties, and the annuities accruing under the fifth clause of William Miller’s will up to May 1, 1885, have been paid from the proceeds of such sales, but the annuities accruing on May 1, 1886, have not yet been paid. About 99,000 square feet of land on Edgewood Street in the Roxbury district of Boston, of the value of $31,500, now remain unsold. Sarah Delano, referred to in the fifth clause of said will of William Miller, died on June 27, 1886. Almira D. Miller, also referred to therein, is now named Almira D. Moore, is a widow, and has living issue, she being now fifty-one years old. Maria D. Miller, also referred to in said clause, is now aged fifty-three years and nine months, having been born in January, 1833, and has never been married, and has never had any child. At the hearing before me upon the question as to the terms upon which the unsold residue of the lands should be sold, the parties agreed that sufficient land should be sold to satisfy the unpaid annuities accruing up to the death of Sarah Delano on June 27, 1886. There were further conflicting claims as to the proper construction of said fifth clause of the will of William Miller. The petitioners contended that all the annuities ceased upon the death of Sarah Delano, and that, as Maria D. Miller had attained, in a childless and unmarried condition, an age at which a court of equity would adjudge her incapable of childbearing, a final decree should now be made for the sale of sufficient land to produce the sum of $10,000, and no more; and that this sum should be placed in the hands of a competent trustee, to be appointed by this court, and to be held upon the following trusts: 1st. To invest the same in such securities as are defined by the law for the investment of the funds of savings banks, and to hold the same during the life of said Almira D. Moore, paying the net annual income in annual payments to the persons entitled to the land under the will of David Miller. 2d. Upon the decease of said Almira D. Moore, to divide said principal sum of $10,000 among the children of her body, upon the terms set forth in said fifth clause of the will of William Miller. The respondents contended as follows : 1st. That, notwithstanding the death of said Sarah Delano, the annuities created by the will of William Miller for the benefit of his two illegitimate daughters continue during the life of each of said daughters respectively at the rate of $600 per annum for each. 2d. That it cannot now be determined, upon the foregoing facts, that no sum of $10,000 should be set apart for such child or children as may be hereafter born of the body of said Maria D. Miller. 3d. That sufficient land should be hereafter sold to satisfy said annuities, and to produce the sums necessary for the children of said Almira D. Moore, and the future children, if any, of said Maria D. Miller.