Ford v. Ford

107 N.E. 948, 220 Mass. 322, 1915 Mass. LEXIS 702

• Court: Massachusetts Supreme Judicial Court
• Decided: February 26, 1915
• Status: Published

Opinion

Crosby, J.

The testator by the third clause of his will provided as follows: “All my estate whether real personal or mixed, and wherever the same may be situated I give, devise and bequeath to my wife Elizabeth A. Ford and my daughter Mary A. Ford, of the County and State aforesaid, duly during their joint lives, in equal shares, and after the death of either of them the survivor to become sole legatee unless my daughter should die first leaving issue, in which event if my wife be still living one half of the income of said property shall be paid to her during her life and the other half to the issue of my said daughter in equal shares and upon the death of both my said wife and daughter said real, personal or mixed estate shall revert to my next of kin, the persons would have been rightfully entitled to the same had I died intestate.”

Under this clause of the will, the testator first gave a life estate to his widow and to his daughter during their joint lives, and after the death of either the survivor was to take the whole of the income unless before the death of the mother the daughter died leaving issue, in which event the issue of the daughter was to have the income to which their mother would have been entitled during her lifetime.

So far this provision of the will relates only to income. The testator then provided: "And upon the death of both my said wife and daughter said real, personal or mixed estate shall revert to my next of kin, the persons [who] would have been rightfully entitled to the same had I died intestate.”

Having disposed of the income in the manner provided in the will, he gave the principal of the estate to his next of kin, that is, to those persons who would have inherited his estate had he died intestate.

Under the decisions of this court it is well settled that heirs or next of kin are to be ascertained as of the time of the testator’s decease, unless a different intent is plainly manifested by the will. Welch v. Blanchard, 208 Mass. 523.

The mother and daughter had a vested remainder in the property in which the testator had created the life estates. The use of the word "revert” does not affect the validity of the gift to those persons who would have inherited at the death of the testator if he had died intestate.

It follows that upon the death of the testator’s widow the trust was terminated, and as she died intestate the one half interest ■in the remainder which she took (subject to the life estates) became vested in the daughter, who upon her mother’s death became the absolute owner of the entire estate and she is now entitled to have it transferred and conveyed to her. Bassett v. Nickerson, 184 Mass. 169.

Accordingly the decree of the single justice must be affirmed.

So ordered.