Construction of will.
A testator gave land and shipping property, the income and profits thereof to be received by his wife for the support of herself and minor children until his youngest child should attain its majority and after his youngest child attained its majority, one third of said income and profits to the wife for life, the remaining two thirds to be divided among his living children and the representatives of deceased children in equal shares, per stirpes, and, after the death of the wife, said real estate and shipping to be divided among his children. The wife died before all the children attained their majority. On a bill in equity, brought by a son who had attained his majority, against the trustees and guardian of the minor children, for a division of the real estate and shipping, it was held, that such division might be decreed.
FROM ROCKINGHAM CIRCUIT COURT.
LADD, J.
No objection has been made, either by the trustees or the guardian of the minor children of George Chesley, to the division of the real estate and shipping property sought by the bill. The testator's intention is not very clearly manifested in his will; indeed, it seems altogether likely that the contingency of his wife dying before his youngest child attained its majority was not in his mind at all. The provisions, as to the performance of the trust and the application of the income, all seem to be based on an assumption of the continuance of the life of his wife. All the income, after paying the annuity to his mother and sister, was to be received by his wife for the support of herself and minor children till the youngest child should attain its majority. It is doubtful whether it can be said that the will shows an intention that the same income should be wholly devoted to the support of his minor children, in case his wife died before the youngest attained its majority. Besides, there is a clear and explicit direction that after the death of his wife the real estate and shipping should be divided equally among his children and their representatives; and I am, upon the whole, inclined to think we are less likely to make a mistake in interpreting and applying the will if we give this clause controlling weight, than if we undertake to discover a different intention among those clauses which have been rendered inconsistent, or impossible of literal execution, by the death of his wife before his youngest child reached its majority. Security must be furnished for payment of the annuity to the sister, and then a decree should be entered, according to the prayer of the bill, for partition of the real estate and shipping.
CUSHING, C. J.
I have nothing to add to what has been said by my brother LADD.
SMITH, J., concurred.
Decree according to the prayer of the bill.