Bancroft v. Fitch

Massachusetts Supreme Judicial Court

Bancroft v. Fitch

41 N.E. 661, 164 Mass. 401, 1895 Mass. LEXIS 252

CourtMassachusetts Supreme Judicial Court

DecidedOctober 17, 1895

StatusPublished

Cited by9 cases

This text of 41 N.E. 661 (Bancroft v. Fitch) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bancroft v. Fitch, 41 N.E. 661, 164 Mass. 401, 1895 Mass. LEXIS 252 (Mass. 1895).

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Opinion

Barker, J.

The testatrix died in the year 1884, leaving three daughters, Louisa M. Brigham, Harriet L. Wheeler, and Helen S. Bailey, the wife of Bradbury M. Bailey, and two sons, Francis G. Fitch and Andrew L. Fitch. Helen Bailey has died since the death of the testatrix, and Francis G. Fitch has died since the death of Helen S. Bailey. After making several bequests not now material, the testatrix disposed of the residue of her property in these terms: “ I give, devise, and bequeath to my son Francis G. Fitch all the rest of my property that I die possessed of, both real and personal. The same to be held in trust by my said daughter Helen and her husband, Bradbury M. Bailey, for the support and maintenance of the said Francis G. Fitch, anything remaining at his decease shall be equally divided [402]*402among my three daughters.” The decree appealed from ordered that the trust property not used for the support and maintenance of Francis G. Fitch should be distributed, one third each to the daughters, Louisa M. Brigham and Harriet L. Wheeler, and one third to the legal representatives of the deceased daughter, Helen S. Bailey.

The decree was right. The amount of the fund which might ultimately pass to the daughters of the testatrix was wholly uncertain, but such an uncertainty does not prevent the vesting of the right to share in the distribution. That the testatrix did not intend to treat her daughters as a class, the survivors only of which should share in the distribution, is evident not only from the words used, “shall be equally divided among my three daughters,” which under the circumstances are equivalent to naming them, but also from the absence of any further disposition of the fund in case none of her daughters should survive the son for whose support the fund was first given.

We assume that the decree dealt only with personalty. If any portion of this residue was realty, the interest of Helen S. Bailey in it would of course go to her heirs by the statute.

Decree of Probate Court affirmed.

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Barker, J.

The testatrix died in the year 1884, leaving three daughters, Louisa M. Brigham, Harriet L. Wheeler, and Helen S. Bailey, the wife of Bradbury M. Bailey, and two sons, Francis G. Fitch and Andrew L. Fitch. Helen Bailey has died since the death of the testatrix, and Francis G. Fitch has died since the death of Helen S. Bailey. After making several bequests not now material, the testatrix disposed of the residue of her property in these terms: “ I give, devise, and bequeath to my son Francis G. Fitch all the rest of my property that I die possessed of, both real and personal. The same to be held in trust by my said daughter Helen and her husband, Bradbury M. Bailey, for the support and maintenance of the said Francis G. Fitch, anything remaining at his decease shall be equally divided [402]*402among my three daughters.” The decree appealed from ordered that the trust property not used for the support and maintenance of Francis G. Fitch should be distributed, one third each to the daughters, Louisa M. Brigham and Harriet L. Wheeler, and one third to the legal representatives of the deceased daughter, Helen S. Bailey.

The decree was right. The amount of the fund which might ultimately pass to the daughters of the testatrix was wholly uncertain, but such an uncertainty does not prevent the vesting of the right to share in the distribution. That the testatrix did not intend to treat her daughters as a class, the survivors only of which should share in the distribution, is evident not only from the words used, “shall be equally divided among my three daughters,” which under the circumstances are equivalent to naming them, but also from the absence of any further disposition of the fund in case none of her daughters should survive the son for whose support the fund was first given.

We assume that the decree dealt only with personalty. If any portion of this residue was realty, the interest of Helen S. Bailey in it would of course go to her heirs by the statute.

Decree of Probate Court affirmed.

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Bluebook (online)

41 N.E. 661, 164 Mass. 401, 1895 Mass. LEXIS 252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bancroft-v-fitch-mass-1895.

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