Thomson v. Ludington

104 Mass. 193

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1870
• Status: Published

Opinion

Gray, J.

The devise at the death or marriage of the widow “to and among such of my children as shall then be living, share and share alike,” gives a contingent remainder to such of the children as shall be living when the contingency of such death or marriage happens. Olney v. Hull, 21 Pick. 311. In the next clause, the testator gives the names of “ my said children,” that is, of all those already described as “ my children ; ” for he could not foretell which of them would be living at a future time; and this clause does not extend the effect of the previous one, by which such of them only as shall be living upon the happening of the contingency are to take. The further words “to them and their heirs and assigns forever” do not describe the devisees, but the quantity of their estate, or, in other words, merely-show that the estate to be taken by virtue of the previous words is an estate in fee. The daughter who died after the testator and before his widow therefore took nc estate, and none passed to her child.

Judgment for the defendants,