Morse v. Mason

93 Mass. 36

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1865
• Status: Published

Opinion

Gray, J.

The presumption that, as a will speaks from the death of the testator, it refers to the state of things then existing, must yield when the will manifests the testator’s intention to refer to the state of things existing at the time of making it. We are of opinion that such an intention is clearly manifested in this case. The language of the gift “ to the surviving children ” of the sister of the testatrix, “ not knowing all their names,” shows that the testatrix would have given it to them by name if she had known what their names were, and must have the same effect as if she had. The clause “ they living in the state of Maine ” is added by way of description of the children then living, not to limit the gift to those who might happen to live in that state at the time of the death of the testatrix. The children among whom the residue was intended to be equally divided were therefore those surviving when the will was made; and one of them having afterwards died before the testatrix, leaving issue who survived the testatrix, such issue, by our statute of wills, take their parent’s share. Gen. Sts. c. 92, § 28.

Decree accordingly.