
    William P. Butterfield & wife vs. Caleb S. Hamant.
    A testator, in his will, gave to A. “ the improvement of ” certain land, and to " B., his heirs and assigns, all the real estate that I gave the improvement ofeto his father, A., his natural life. Provided he should not outlive his father, A., then I give to his three brothers, of what I gave him, the said B.; ” u and in case B. should outlive his father, and come into possession of the estate, it is my will that he shall pay ” his said brothers a certain sum each, in one year. A. and his four children survived the testator; and then B. died in the lifetime of the others. Held, that on the death of A., the remainder in the land vested in the three brothers.
    Writ of entry to recover land in Medfield, of which Asa Boyden died seised in 1803, and by his will disposed as follows :
    “ I give and devise to my son, Amos Boyden, the improvement of that lot of land his house stands upon. I give and devise to my grandson, Asa Boyden, his heirs and assigns, all the real estate that I gave the improvement of to his father, Amos Boyden, his natural life. Provided he should not outlive his father, Amos Boyden, then I give and devise to his three brothers, and iny three grandchildren, namely, Theodore Boyden, Walter Boyden, and Preston Boyden, of what I gave him, the said Asa, and then to be equally divided between them three brothers; and in case the said Asa should outlive his father, Amos Boyden, and come into possession of the estate, it is my will that he shall pay his brother Theodore seventy dollars, and his brother Walter seventy dollars, and his brother Preston seventy dollars, in one year after he comes into the possession of It. And then not until they arrive at lawful age to receive it. And it is my will, in case either of them should not live until it becomes due, and then it is my will that their part shall remain to him the said Asa Boyden.”
    Amos Boyden died in 1843. Asa Boyden, Jr., son of said Amos, and grandson of the testator, died in 1812. The female demandant was his only child, and was born in 1810, and married the male demandant in 1835, and claims title under said will, as heir of her father. The tenant holds the premises under deeds from Theodore Boyden, Walter Boyden, and Preston Boy-den, brothers of Asa Boyden, Jr., and grandsons of the testator, all of whom survived Asa Jr., and became of age.
    The case above stated was submitted to the superior court, which gave judgment for the demandants, and the tenant appealed.
    
      I. Story, for the demandants.
    
      W. Colburn, for the tenant.
   Gray, J.

The intention of the testator, as manifest upon the face of his will, was that upon the death of Amos Boyden (to whom he devised the demanded premises for life) if Asa Boyden, son of Amos, outlived his father, he should take this estate in fee, and pay seventy dollars to each of his brothers who should come of age ; but that if said Asa should not outlive his father, the estate should go to his three brothers equally in fee. The remainder was contingent until the death of Amos, and, his son Asa being then dead, vested in the three brothers, and passed by them deed to the tenant.

Words can be supplied by the court, only when necessary to carry out the apparent intention of the testator as gathered from the whole will. Abbott v. Middleton, 7 H. L. Cas. 68, and cases there cited. In the case at bar, to supply, as the demandants' suggest, after the words, “Provided he should not outlive his father, Amos Boyden,” the words “ and leave no issue surviving his father,” would contravene and defeat that intention.

Judgment for the tenant.  