Smith v. Rice

130 Mass. 441, 1881 Mass. LEXIS 128

• Court: Massachusetts Supreme Judicial Court
• Decided: February 28, 1881
• Status: Published

Opinion

Gray, C. J.

The gift in remainder, after the expiration ot the equitable estates for life reserved to the grantors, and of those granted to Samuel H. Weld and his wife, is “to Elizabeth H. Weld, Susan Weld, Samuel H. Weld, Junior, children of said Samuel H. Weld, and such other children of Samuel H. Weld as shall then be living, and to their heirs and assigns forever.”

There can be no doubt that the gift in remainder is restricted, so far as regards children not named therein, to such children as shall be living at the expiration of the last life estate; and the question to be determined is whether the restriction applies to the children named also.

The court is of opinion that it does. The language used by the grantors manifests their intention to be that no child of Samuel H. Weld shall have any actual or beneficial use of the property until after the expiration of all the life estates; and that “such other children of said Samuel H. Weld” than those named “as shall then be living” (if he shall leave any such other children) shall take equal and similar estates with those named. The legal effect is, that the children named and those not named (if any) together constitute a class, all the members of which cannot be ascertained until the expiration of the life estates; and that the vesting of the title, legal or equitable, in possession or in right, in those of that class who are named, as well as in those who are not named, is contingent upon their surviving the equitable tenants for life. Thomson v. Ludington, 104 Mass. 193. Turner v. Hudson, 10 Beav. 222.

It follows that the child who died before the last tenant for life took nothing, and that the remainder must be divided be< tween the two surviving children.

Decree accordingly.