
    New England Trust Company, trustee, vs. Mary W. Pitkin & others.
    Suffolk.
    March 7, 1895.
    May 24, 1895.
    Present: Field, C. J., Allen, Holmes, Lathrop, & Barker, JJ.
    
      Photographic Copy of Will—Devise and Legacy— Trust — Disposition of Income.
    
    The provision in a will, “ The ballance of my estate is to be kept in trust by the New England Trust Company of Boston, one half the income from which is to be paid to my wife, till the youngest of my children, shall have reach their maturity. After which my wifes portion shall be one forth said income, the ballance being divided equally between my children,” must be construed to mean, irrespective of any conclusion derived from an examination of a photographic copy of the will, that until the youngest of his children reached maturity his wife while she lived should receive one half of the income of the fund, and that the balance of the income, that is, the other half, should be equally divided among the children, and that after the youngest of his children reached maturity his wife while she lived should receive one fourth of the income, and that the balance of the income, that is, three fourths, should, be equally divided among his children until the last surviving child died.
    Petition in equity, by the- trustee under the will of Charles L. Pitkin, against the widow of the testator and other legatees, to obtain the instructions of the court as to the construction of the will. Hearing before Lathrop, J., who reported the case for the determination of the full court. The facts appear in the opinion.
    
      F. L. Dresel, for the petitioner, read the papers in the case.
    
      F. Raekemann, for the minor children of the testator.
   Field, C. J.

The only question upon which the petitioner is now entitled to receive the instructions of the court relates to the disposition to be made, under the second paragraph of the will, of one half of the income of the trust estate during the life of the wife, and until the youngest of the testator’s children reaches maturity. This paragraph is as follows : “ The ballance of my estate is to be kept in trust by the New England Trust Company of Boston, one half the income from which is to be paid to my wife, till the youngest of my children, shall have reach their maturity. After which my wifes portion shall be one forth said income, the ballance being divided equally between my children.” We have examined the photographic copy of the will annexed to the report. This copy shows that the testator in writing his will often used in. punctuation what seems to be a period for what should be a comma, and that the initial letter of the word “ after ” following the word “ maturity ” in the second paragraph is probably a small and not a capital letter. Even without this examination, we think it apparent that the testator intended that until the youngest of his children reached maturity his wife while she lived should receive one half of the income of the fund, and that the balance of the income, that is, the other half, should be equally divided among his children, and that after the youngest of his children reached maturity his wife while she lived should receive one fourth of the income, and that the balance of the income, that is, three fourths, should be equally divided among his children, until the last surviving child died. We cannot now determine the disposition which should be made of the trust property, or of the income, if the wife should die while some of the children were living, or if all the children should die while the wife was living. Instructions accordingly.  