
    Shubael D. Smith, executor & trustee, vs. William C. Smith & others.
    Essex.
    November 4, 1903.
    June 22, 1904.
    Present: Knowlton, C. J., Morton, Barker, Loring, & Braley, JJ.
    
      Devise and Legacy, Construction.
    A bequest to the brothers and sisters of the testator, after a life interest in one of them, means a bequest to the brothers and sisters of the testator living at the time of his death including the beneficiary for life, unless there is something in ,the will to show a different intention.
    A testatrix bequeathed a certain sum of money to a trustee as follows : “ in trust for N. R. wife of H. R., . . . the interest of said sum to be paid to her annually and in case of the death of H. R. the principal to be paid to her thus terminating the trust. In ease of the death of N. R. before the death of her husband the property is to be paid to the brothers and sisters of the testator.” N. R., who was a sister of the testatrix, died before her husband. A brother of the testatrix died after the testatrix and before N. R. Held, that the bequest in remainder, contingent on the death of N. R. before her husband, was to the brothers and sisters of the testatrix living at the time of her death including the deceased brother and N. R.
   Loring, J.

Frances H. Goldsmith by her last will bequeathed |8,000 to the plaintiff “in trust for Naomi B. Richmond wife of Henry Richmond of New Bedford ,. . . the interest of said sum to be paid to her annually and in case of the death of Henry Richmond the principal to be paid to her thus terminating the trust. In case of the death of Naomi B. Richmond before the death of her husband the property is to be paid to the brothers and sisters of the testator.”

The plaintiff duly qualified as trustee. Naomi died during the lifetime of her husband.

This is a bill asking the court to instruct the trustee upon the distribution of the corpus of the trust fund among the remainder-men.

At the death of the testatrix there were three brothers, the plaintiff Shubael D. Smith, William C. Smith and Laurance S. Smith, and two sisters, Laura J. C. Smith and the life tenant Naomi B. Richmond. Laurance S. Smith died before Naomi B. Richmond the life tenant. The surviving brothers and sister claim that they are now entitled to the trust fund. On a petition for instructions brought by the trustee, the Probate Court made a decree directing the fund to “ be equally divided among all the brothers and sisters of the testatrix who were living at the time of her death, that is to say, said fund shall be divided between William C. Smith, Laura J. C. Smith, Shubael D. Smith and the administrators of the estates of Naomi B. Richmond and Laurance S. Smith, both said Naomi B. Richmond and Laurance S. Smith, having deceased, since death of testatrix.” From this decree William C. Smith took an appeal to the Supreme Judicial Court. The decree was affirmed there, and from that decree William C. Smith appealed to this court.

B. P. Baymond, for William C., Shubael D. and Laura J. O. Smith.

B. A. Terry, for the administrator of the estate of Naomi B. Richmond and for the administratrix of the estate of Laurance S. Smith,

We are of opinion that the decree was correct.

A will ordinarily speaks from the death of the testator. A gift to brothers and sisters of the testatrix means a gift to those persons who come within that description at her death unless there is something to show that that was not her meaning. The fact that the gift is of a remainder, that is to say, is a gift of property subject to a life estate, does not show a contrary meaning. This is established in the cases of gifts of a remainder to heirs at law. The last case on that point is Pierce v. Knight, 182 Mass. 72. The fact that by such a construction the life tenant is brought within a class among which the remainder is to be divided, does not show a contrary meaning. Abbott v. Bradstreet, 3 Allen, 587. Minot v. Tappan, 122 Mass. 535. Cushman v. Arnold, 185 Mass. 165. Where, by that construction, the life tenant is the only person in whom the remainder vests, a case is presented where it is more difficult to determine the meaning of the testator. See Welch v. Brimmer, 169 Mass. 204.

There is nothing in this will to lead us to the conclusion that in her bequest to her brothers and sisters subject to the life estate to Naomi the testatrix did not mean those who were her brothers and sisters at the date of her death.

Decree affirmed.  