Brigham v. Wheeler

49 Mass. 127

Opinion

Wilde, J.

The main question in this case is, whether Jonathan D. Wheeler took any estate or interest under the last will of Jonathan Wheeler; and it appears to the court very clear that he did not. The testator undertook to appoint him guardian of his own children, without giving bonds, for the purpose of receiving and managing the property given to them by the will. This appointment the testator had no authority to make. He could only appoint a guardian for his own children. Rev. Sts. c. 79, § 6. The appointment, therefore, is wholly void.

It has been argued that, to effectuate the intention of the testator, the will may be so construed as to vest an estate in trust in Jonathan D. Wheeler, for the use of his children. But the language of the will is plain, and will admit of no such construction.

The disallowance, therefore, to the executors, of the charge of $500 paid to Jonathan D. Wheeler, as guardian or trustee of his minor children, by the judge of probate, must be affirmed.