King v. Savage

121 Mass. 303, 1876 Mass. LEXIS 364

• Court: Massachusetts Supreme Judicial Court
• Decided: November 14, 1876
• Status: Published

Opinion

Gray, C. J.

In every case in which this testator by his will gave an estate for life, he gave the remainder over to the children of the life tenant, and in no case gave anything to the issue of such a child, otherwise than by providing that if the child had deceased, its issue should “ take the share of their deceased parent.” In such a provision, the word “issue” would be limited to children. Sibley v. Perry, 7 Ves. 522. Pruen v. Osborne, 11 Sim. 132. And, by the devise for the benefit of the four children of his sister, Mrs. Savage, during their lives, “ and upon the decease of either of them, the principal of his or her share shall be equally divided among the heirs at law of such deceased person,” the heirs would take per stirpes, according to the statute of distributions. Daggett v. Slack, 8 Met. 450. Tilling-hast v. Cook, 9 Met. 143. Under either provision, the issue of a child still living would take nothing.

The codicil is to be read in connection with, and as part of, the will, and is to receive the same construction, except so far as a different intention is clearly manifested, Lamb v. Lamb, 11 Pick. 371. The inevitable inference is, that in the clause which substitutes, for the devise for the benefit of the four children of Mrs. Savage, a devise for the benefit of three of those children for life, “ and upon the decease of either of them, the principal of his or her share shall be divided among the issue of such deceased person, and if he or she leave no issue, then among their heirs at law,” the testator intended that the word “issue ” should be likewise limited to children, to the exclusion of the issue of a child still living. Edwards v. Edwards, 12 Beav. 97.

Decree for Henry Savage.