Colby v. Duncan

1 N.E. 744, 139 Mass. 398, 1885 Mass. LEXIS 116

Opinion

C. Allen, J.

It is conceded that this petition cannot be maintained, if the interest which the children of James H. Duncan took under his will in his real estate was a contingent remainder. The devise is clearly limited to the children who may be living at the decease of the testator’s wife, and until that event happens it cannot be ascertained who will take. Were anything necessary to fortify this construction, it would be found in the earlier bequest to each of the testator’s children who may survive him. He thus draws a clear. distinction between those who are to take under these two different clauses. The interest in the real estate was a contingent remainder. Denny v. Kettell, 135 Mass. 138. Smith v. Rice, 130 Mass. 441. Thomson v. Ludington, 104 Mass. 193. Olney v. Hull, 21 Pick. 311. Judgment affirmed.