Opinion
January 24, 1906.
March 5, 1906.
Present: KNOWLTON, C.J. MORTON, LATHROP, HAMMOND, SHELDON, JJ.
In a will containing various provisions indicating a scheme that issue should take by right of representation, a provision that on the death of a daughter of the testator the share of which she had enjoyed the income should go "to her lawful issue share and share alike," was held to mean a distribution per stirpes and to exclude the child of a living child of the daughter.
BILL IN EQUITY, filed in the Probate Court for the county of Suffolk on April 27, and amended on May 22, 1905, by the trustees under the will of Gideon Skull Holmes, late of Boston, for instructions as to the distribution of a trust fund, under the provision of that will which is quoted in the first paragraph of the opinion, upon the death of Sarah T. Coates, a daughter of the testator who had enjoyed the income of the fund during her life, and who died on December 19, 1904, leaving seven children and one grandchild, Emma Burton, the minor daughter of Elizabeth Coates Burton, one of the seven children of Sarah T. Coates still living.
In the Probate Court Grant, J. made a decree that the fund be distributed among the children of Sarah T. Coates per stirpes to the exclusion of the grandchild Emma Burton, the daughter of a living child. Emma Burton by George. L. Huntress, her guardian ad litem, appealed.
The case came on to be heard before Lathrop, J., who reserved it upon the petition as amended and the answers for determination by the full court, such decree to be entered therein as justice and equity might require.
G.L. Huntress, guardian ad litem for Emma Burton.
R.P. Clapp, for the children of Sarah T. Coates other than Emma Burton.
The question before the court arises upon the following language of the will of Gideon S. Holmes, late of Boston, deceased: "Upon the decease of each of my said daughters Caroline or Sarah, after the decease of my wife my trustees hereunder shall pay over a proportion of the principal of the said fund of fifty thousand dollars, and said estate on Fort Avenue, then in trust hereunder for their benefit equal to the proportion of the income thereof which such daughter so dying shall at her decease be entitled to receive, to her lawful issue share and share alike, and in case of either or both dying without such issue living at her decease, then to my then heirs at law in either and all cases to have and to hold to them their heirs and assigns to their own use and behoof forever." The daughter Sarah has lately deceased, leaving as her sole issue seven children, and a grandchild, the daughter of one of these living children. The question is whether the share of which Sarah had the income is to be divided into seven equal shares, one for each of her children, or into eight equal shares, of which the grandchild shall receive one.
In Jackson v. Jackson, 153 Mass. 374, where, under a will, the share of a life tenant was to be given after her death to her issue, she having died leaving children, and grandchildren who were the offspring of one of her children then living, as well as a grandchild who was the daughter of one of her deceased children, it was held that the share was to be divided among the children and the daughter of the deceased child taking by right of representation, to the exclusion of the grandchildren who were the offspring of a living child. Chief Justice Field said, after a review of the cases, "The tendency of our decisions has been more and more to construe 'issue,' where its meaning is unrestricted by the context, as including all lineal descendants and importing representation, and certainly, when the issue take as of a particular time after the death of the testator, and only the issue living at that time take, the issue of deceased issue take by a sort of substitution for their ancestors." In the present case the will is like that in Jackson v. Jackson in reference to the matter referred to in the last part of the above quotation. This is not a case where the issue take as of the death of the testator, but only those take who are living at Sarah's decease.
This decision exactly covers the case at bar, except that the present will contains the words "share and share alike." In Hall v. Hall, 140 Mass. 267, the shares of the life tenants were "to be equally divided among all such issue or children, share and share alike." It was held that the division should be among the children and the issue of deceased children, taking per stirpes. It was said, in the opinion, that the words "among all such issue or children share and share alike" do not "necessarily mean that each of such issue shall have an equal share with every other, or with a child. It is satisfied if all such issue share in a division which is equal as between the living children and the issue of deceased children taking per stirpes." Dexter v. Inches, 147 Mass. 324, and Gardiner v. Savage, 182 Mass. 521, are like Jackson v. Jackson, ubi supra, and Hills v. Barnard, 152 Mass. 67, is similar to it.
Other parts of the present will indicate that the words "share and share alike" are to be construed as they were in Hall v. Hall, ubi supra. The provision, quoted above from the will, is one of several provisions contained in the ninth clause, in which, with considerable fullness of statement, the testator provided for the disposition of the remainder in the shares given for life to his three children, respectively. Each of these shares was to go to the issue of the life tenant after his decease. There are four paragraphs, providing for different contingencies as to the order of decease, etc. All of them indicate a scheme that issue shall take by right of representation. In two paragraphs it is expressly said that the issue are to take by representation, while in two others, without any apparent reason for making a distinction, these words do not appear. We think these provisions and the scheme of the will indicate that the testator did not intend, if his daughter should leave several children, and also grandchildren who were the children of one of these living children, that they should take per capita, so that one of the children and his descendants might receive as much as all of his brothers and sisters together. We think the case should follow the decision in Jackson v. Jackson. Decree of Probate Court affirmed.