Butterfield v. Hamant

105 Mass. 338

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1870
• Status: Published

Opinion

Gray, J.

The intention of the testator, as manifest upon the face of his will, was that upon the death of Amos Boyden (to whom he devised the demanded premises for life) if Asa Boyden, son of Amos, outlived his father, he should take this estate in fee, and pay seventy dollars to each of his brothers who should come of age ; but that if said Asa should not outlive his father, the estate should go to his three brothers equally in fee. The remainder was contingent until the death of Amos, and, his son Asa being then dead, vested in the three brothers, and passed by them deed to the tenant.

Words can be supplied by the court, only when necessary to carry out the apparent intention of the testator as gathered from the whole will. Abbott v. Middleton, 7 H. L. Cas. 68, and cases there cited. In the case at bar, to supply, as the demandants' suggest, after the words, “Provided he should not outlive his father, Amos Boyden,” the words “ and leave no issue surviving his father,” would contravene and defeat that intention.

Judgment for the tenant.