Devise and Legacy, Construction. Where by the residuary clause of a will a fund is given to a trustee more than sufficient to pay certain annuities provided for, with a provision that the surplus income shall be added to the principal during the lives of the annuitants, and that on the death of all the annuitants the entire fund including the accumulations shall be distributed, this tends to show an intention that the remainders shall be contingent and vest only upon the death of the last annuitant.
A testator gave the residue of his estate to the Carney Hospital in trust, to pay certain annuities, which the estate was more than sufficient to pay, and then provided as follows: "The remainder of the income of said estate I direct to be added to the principal of the estate during the lives of said annuitants, and on the death of all, I direct the Carney Hospital to take to its own use one quarter of all the estate, and to convey the residue to the youngest Adams of the issue of Durward Adams whose descent is wholly in the male line from said Durward, in default I direct the trustee to convey said residue to the youngest of the issue of Julius Adams Ulman, in default I direct the trustee to convey said residue to the youngest of the issue of Durward Adams, in default I direct the trustee to convey said residue to the youngest of the issue of Elizabeth A. Ulman, in default I direct the Carney Hospital to take to its own use the said residue." Held, that the remainder was contingent on the circumstances existing at the death of the last annuitant, and did not vest in the person who answered the description of the beneficiary at the time of the death of the testator.
LATHROP, J.
The will of Julius Adams, executed December 23, 1898, and admitted to probate on May 24, 1900, after certain pecuniary and specific legacies, gave the remainder of his estate to the Carney Hospital in trust, to pay from the income of the estate to each of the children of Durward Adams, five hundred dollars a year during the life of each child, and to the child of Alice, deceased daughter of said Durward, five hundred dollars a year during its life. Then follow several other annuities to be paid from the income, and this clause follows: "The remainder of the income of said estate I direct to be added to the principal of the estate during the lives of said annuitants, and on the death of all, I direct the Carney Hospital to take to its own use one quarter of all the estate, and to convey the residue to the youngest Adams of the issue of Durward Adams whose descent is wholly in the male line from said Durward, in default I direct the trustee to convey said residue to the youngest of the issue of Julius Adams Ulman, in default I direct the trustee to convey said residue to the youngest of the issue of Durward Adams, in default I direct the trustee to convey said residue to the youngest of the issue of Elizabeth A. Ulman, in default I direct the Carney Hospital to take to its own use the said residue."
The provisions of this will are described in the report of Elder v. Adams, 180 Mass. 303, 304.
The only question presented is whether Isaac Murray Adams, who, when Julius Adams died, was and now is the youngest Adams of the issue of Durward Adams whose descent is wholly in the male line, takes a vested interest in the residue, or whether the person who answers the description is to be determined when the last annuitant dies, and so the interest is contingent. We are of opinion that the latter construction is the true one.
In the first place, what is to be distributed consists not only of the residue but of the accumulated income, and this could not vest at the testator's death. This tends to show that "the vesting of the whole was postponed till the arrival of the event on which the distribution is made to depend." Hale v. Hobson, 167 Mass. 397, per Morton, J.
In the next place we are of opinion that the scheme of the will shows that a contingent interest was intended. If Isaac Murray Adams took a vested interest, there was no need of the elaborate scheme of the testator, by which on the death of the last annuitant the residue was to be disposed of. Isaac Murray Adams was living both when the will was made and at the death of the testator, but in the residuary clause he is not mentioned by name. The intention of the testator evidently was that some one person in the four classes he mentions should take, according to the circumstances existing at the death of the last annuitant, and so the person cannot be determined until that time arrives.
Decree accordingly.