Osborne v. Varney

48 Mass. 301

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1843
• Status: Published

Opinion

Shaw, C. J.

The court are of opinion that this clause in the residuary devise, viz. “ to hold upon the same conditions and limitations as are set forth in the above devise in trust to Stephen Varney and his children,” qualifies the whole gift, describes the persons who are to take, and limits the benefit of the devise to Stephen to the same two children, William Henry and Betsey, to whose use the specific bequest was made. “ To Stephen Varney and his children,” is a clause describing the former bequest, and was meant to identify it, and therefore must be construed to mean the two children before mentioned, to avoid repetition, and not to extend the bounty to children generally. We cannot read the will otherwise, so as to give it a sensible construction.

As to the offer of parol evidence, the court are all of opinion that such evidence cannot be received to prove the intention of the testatrix to give this quarter part of the residue after their father’s death, to all the children of Stephen Varney. It is within all the reasons and authorities so fully considered in the late case of Tucker v. Seaman’s Aid Society, (ante, 188.)

The decree therefore will be, that the trust for this quartet part of the residue, since the decease of Stephen Varney, is for the benefit of William Henry and Betsey Varney, and that the other children are not entitled to share.