Brightman v. Brightman

100 Mass. 238

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1868
• Status: Published

Opinion

Chapman, C. J.

The clause in Israel Brightman’s will devising certain real estate “ to Daniel and John Brightman and to their heirs and assigns,” taken by itself, gave them an estate in fee simple. The subsequent clause providing that “ if the said Daniel or John shall decease, leaving no issue of his body lawfully begotten, then what I have devised to such one, I here devise to the survivor thereof and his heirs and assigns,” created an executory devise limited upon that fee simple. Richardson v. Noyes, 2 Mass. 56. But the contingency did not happen; for Daniel died first, and left issue; and when John died Daniel did not survive him. Upon the decease of Daniel leaving issue, the contingency mentioned became impossible, and the estate in fee simple remained. Judgment for the tenant.