Trust, Construction of instrument creating trust. Devise and Legacy, Estate for life.
The will of a woman, who died leaving surviving her two brothers and a sister, provided that a certain sum should be held by one brother in trust for the other brother, "the income to be paid over to him annually and if necessary such part of the principal as my said trustee may desire for his comfortable support and maintenance." There was a residuary clause giving all the rest, residue and remainder of the property of the testatrix to her two brothers and sister. The brother for whose benefit the trust was created died, leaving surviving him two daughters, his brother, and a daughter of his sister. On a petition by the trustee for instructions, it was held, that the deceased brother had only a life estate in the trust and that the unexpended balance thereof should be divided equally among the surviving brother of the testatrix and personal representatives of the brother and of the sister who had deceased.
WAIT, J.
The interpretation of the fifth clause in the will of Patience E. Snow is settled by the recent decision in Cavan v. Woodbury, 240 Mass. 125. In that case, after ample discussion of the authorities, language in substance the same as that used in the will before us was held to create an equitable estate for life. The administrator with the will annexed of the cestui que trust, in claiming an equitable fee, has relied chiefly upon Chauncey v. Francis, 181 Mass. 513. It is to be noted that in Chauncey v. Francis, there were other gifts of equitable life estates with provisions for the remainders, and, the court says, "there is no reason why she should not have used similar language for the disposition of the remainder of the trust fund created in the clause in question if she had intended that the interest in the whole of the fund should not pass to her nephew."
In the will before us there is no such indication of the purpose of the testatirix. The fact that, in the will of Patience E. Snow, there is a residuary clause, while there was none in the will interpreted by Cavan v. Woodbury, does not require a different result.
The decision of the judge of the Probate Court was correct. The will created an equitable life estate; and the petitioner should now distribute the fund as directed in the decree.
Decree affirmed.