Harding v. Harding

Morton, J.

The question in this case is whether the moiety of the rest and residue of which the son had the income for life vested in the children of the son living at his death, or in the children of the son living at the death of the testator. We think that, in view of the peculiar language of the will, the moiety must be regarded as vesting in the children who were living at the son’s death. It seems to us that the words “on the decease of . . . my said son or daughter, then, and not till then, I give and devise the said moiety ... to their respective children in fee,” when taken in connection with what follows, more naturally point *271 to an intention on the part of the testator that the gift shall not take effect at all till the death of the son, than they do to the postponement of the enjoyment of a gift which had vested at the testator’s death. The words “on the decease of” cannot have the construction more usually given to those or similar words of fixing the time when the enjoyment of the bequest is to begin, since the testator expressly directs in the same sentence “ that no division or partition of the moiety shall be made to and among my grandchildren until the youngest child shall reach the age of twenty-one years respectively, excepting, however, the income thereof.” The words “on the decease of” must therefore have been used by the testator alio intuitu. The words “then and not till then” are emphatic, and perhaps somewhat rhetorical. They show that in the disposition of his estate the testator placed especial stress on the arrival of some particular time, or the happening of some particular event in the future. That time or event was plainly the death of his son. And “ then and not till then,” the testator declares, “I give and devise the said moiety,” of which the son had had the income, to his (the son’s) children in fee, meaning, as it seems to us, the children who shall then be living. It is true that there are no words of contingency or survivorship; but those are not necessary, if it appears otherwise that it was the intention of the testator that the remainder should vest on the decease of his son in such of the son’s children as should then be living. The change from the words “ then and in that event,” which occur earlier in the residuary clause, when the testator is providing for a possible deficiency in the income to be paid to his wife, to the words “ then and not till then,” where he gives and devises the moiety in fee to the children of his son, also seems to us significant, and to show that the testator understood what words would express a sequence of event and what words would describe a point of time at which his gift should take effect. It is also a circumstance to be noted that the testator nowhere manifests any intention to provide for the issue of any child of the son or daughter, but limits his bounty to the son and daughter and their children. And it seems to us also that the words “ their respective children,” in the connection in which they occur, more readily describe children living at the death of the *272 son or daughter than they do children who were living at the testator’s death.

The defendant relies on Shattuck v. Stedman, 2 Pick. 468 , and Marsh v. Hoyt, 161 Mass. 459 . But in neither of those cases was it manifest, as we think it is here, that the remainder should not vest till the death of the life tenant. Of the two cases Shattuck v. Stedman more nearly resembles this, but even that differs from it in material respects.

Upon the whole case we are of the opinion, as already stated, that the children living at the death of the son take. Olney v. Hull, 21 Pick. 311 . Hale v. Hobson, 167 Mass. 397 . Heard v. Read, 169 Mass. 216 . Decree accordingly.