
    Gustavus B. Williams & another vs. Moses Joy, Jr. & others.
    Worcester.
    December 12, 13, 1895.
    —January 4, 1896
    Present: Field, C. J., Allen, Holmes, Knowlton, & Lathrop, JJ.
    
      Devise and Legacy— Contingent and Several Interests— Termination of Trust.
    
    A testator, by his will, gave property to trustees to pay the income to his brother M. for life, and if at M.’s decease his daughter E. and his son M. Jr. should be living, to transfer the principal to them in equal portions; but if they were not then living, to pay the income to his wife 0. during her life, and at her decease to transfer the principal to a college. At the time of M.’s death, 0. having already died, M. Jr. was living and E. had deceased leaving two sons. Held, that the interests of E. and M. Jr. were contingent during the life of M., and were also several, and that M. Jr. was now entitled to one half of the property and the college to the other half.
    Bill is equity, by the trustees under the will of David Joy, against Moses Joy, Jr., Frederick J. Greene, and David J. Greene, the last two named being the children of Elizabeth Greene, deceased, and Antioch College, to obtain the instructions of the court as to the construction of the fifth article of the will.
    
      The case was heard by Allen, J., and reserved for the consideration of the full court on the bill, the answer, and certain agreed facts, the nature of which appears in the opinion.
    
      W. Williams, for the plaintiffs, read the papers in the case.
    
      S. H. Tyng, for Moses Joy, Jr.
    
      F. B. Harlow, for Antioch College.
    
      T. G. Kent, for the administrator of Elizabeth Greene.
   Field, C. J.

The testator died on April 5, 1875; Charlotte A. Joy died on March 13,-1892; Moses Joy died on June 19, 1895; and Elizabeth Greene died in July, 1877, leaving two sons, who are now living. Moses Joy, Jr. is still living. It thus appears that at the time of Moses Joy’s death one of his children was dead and one was living. The fifth article of the will is as follows:

“ Fifth. I hereby direct my said trustees to appropriate and set apart one one-tenth part of all my estate devised and bequeathed to them, and to pay the interest and income derived from the same in semi-annual payments to my brother Moses Joy, now of Nantucket, Massachusetts, for his own use and benefit during the term of his life. And if at his decease his daughter Elizabeth Greene, wife of Darwin A. Greene, now of New York City, and his son Moses Joy, Jr., be then living, I hereby direct my said trustees to immediately convey, transfer, and set over to them in equal portions that portion of my estate which was set apart for the use of their father, Moses Joy. But if, at the decease of my brother Moses Joy, his children above named shall not then be living, I hereby direct my trustees to pay to my wife, Charlotte A. Joy, during her life, the income derived from that part of my estate that would have been paid to the above named children of my brother Moses, or either of them, and at her decease to immediately convey, transfer, and set over such portion of my estate as the said children, or either of them, would have received if living, to the trustees of 1 Antioch College of Yellow Springs,’ Greene County, Ohio, subject to the same conditions and restrictions, and to be used for the same purposes and in the same manner as directed in that clause of this will relating to the final disposition — after the decease of my wife — of that portion of my estate from which she has derived her income.”

We are of opinion that the interests of Elizabeth Greene and Moses Joy, Jr., under this article of the will, were contingent during the life of Moses Joy, and were several; that each was to be entitled to one half of that portion of the estate set apart for the use of Moses Joy, if he or she were living at the decease of Moses Joy; and that therefore Moses Joy, who was junior until the death of his father, is now entitled to one half of this property, and the trustees of Antioch College are entitled to the other half. Decree accordingly.  