Pike v. Stephenson

99 Mass. 188

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1868
• Status: Published

Opinion

Gray, J.

The ordinary presumption is, that all devises and bequests vest upon the death of the testator; and there is nothing in the provisions of this will to control that presumption.

The devise, in the fourth article of the will, of the use and improvement of the land in question to Mrs. Pike was a devise of the estate to her for life ; and the devise over to her children and to the children of any deceased child by right of representation, gave the children of Mrs. Pike, living at the death of the testator, vested remainders in fee. The devise over is not restricted to such of her children or grandchildren only as may survive her, but is to all her children and the children of any deceased child. The words, “ in the event of her decease, I do then give,” do not express a contingency which may or may not happen, but an event which is sure to arrive, sooner or later; and define, not the time when the remaindermen are to be ascertained, or when their titles are to begin, but when they are to receive the possession, use and enjoyment of their shares. Brown v. Lawrence, 3 Cush. 390. Wight v. Shaw, 5 Cush. 56. White v. Curtis, 12 Gray, 54. Womrath v. McCormick, 51 Penn. State, 504. Doe v. Considine, 6 Wallace, 458.

The language of the ninth article of the will tends rather to confirm than to weaken this conclusion. That article contains a residuary devise and bequest to Mrs. Pike in fee; but in case she shall die before the testator, then, instead thereof, a like devise and bequest is made to her children “who shall then be living,” and the children of any deceased child. The words “ who shall then be living ” in this article, refer to the time of the testator’s death, and their insertion here gives to the omission of any like words in restriction of the remainder clause in the fourth article the marks of deliberate intention.

Judgment for the petitioner.