
    Robert Hooper, Executor vs. Henry Hooper & others.
    H. by will, gave his wife, for life, the use of his dwelling-house and of all his plate and furniture; also an annual income arising from an investment of $40,000 j and to W. R. H. and E. H. H., grandsons, $1,000 each, to be paid when they should be twenty-one years of age; but if they, or either, should not live so long, the bequest to them to belong to the testator’s children ; to S. H. and B. E. H., and seven other children, each one ninth of his estate, real and personal. He then directed that the said $40,000 should remain invested thirty years after his wife’s decease, the income to be equally divided among his nine children, or their heirs; and that, after the decease of his wife, all his real estate should be sold. After the decease of the widow, the executor sold the real estate and furniture, and filed a bill in equity, for direction in the construction of the will; held, that the clause directing that the investment of the $40,000 should remain for thirty years after the wife’s décease, was void; that the gift of the testator’s “ estate, real and personal,” one ninth to each of his children, embraced the reversion expectant on the determination of the widow’s life estate in the $40,000, and also the proceeds of the real estate sold by the executor.
    S. H. one of the sons, died after his father, the testator, but in the lifetime of the widow, intestate and without issue; his ninth was decreed to be paid to his personal representative.
    B. E. H., one son, died before the testator, without issue and intestate; held, that his legacy of one ninth lapsed and fell into the general estate, and should be distributed as intestate estate, and that the two grandsons would take the share of their deceased father therein by right of representation.
    E. H. H., one of the grandsons, died intestate and without issue after the testator’s death; his portion of his deceased father’s share was directed to be paid to his personal representative to be administered according to law.
    This was a bill in equity, brought by Robert Hooper, executor and trustee under the will of his father, Robert Hooper, of Marblehead, deceased, for the purpose of obtaining the direction of this court, in regard to the true construction of the will, and his duties under it. All the devisees, legatees, and heirs at law, of the testator, were made parties to the suit, and the bill was taken for confessed against all of them except William R. Hooper, a grandson of the testator, who filed his answer.
    From the bill and answer it appeared, that Robert Hooper, the testator, in and by his last will and testament, dated the twenty-second day of February, 1838, and duly proved on the fourth day of July, 1843, made certain bequests and provisions, the material portions of which were as follows: —
    “ First. I give to my beloved wife, Mary, during her life, the use and occupancy of my dwelling-house, &c., with all the plate, furniture, &c.
    “ Second. I give to my said wife an annual income, during her life, of two thousand dollars; and my executor is enjoined to invest in some certain and productive stock, from my personal estate, a sum sufficient for that purpose, the amount so invested to be not less than forty thousand dollars.
    
      “ Tim’d. I give to my two grandsons, Franklin H. and William R., children of my late son William, deceased, each oile thousand dollars, to be paid to them by my executor, when they shall be of the age of twenty-one years, should they live to that age, or either of them; but if they, or either of them, should not live so long, the said bequest or bequests shall belong to my children.
    
      “ Fourth. I give to my sons, Robert, John, and Henry, each one ninth part of my estate, real and personal, after providing for the bequest to my wife and to my two grandsons before named.
    “ Fifth. I give to my three daughters, each one ninth part of my estate, both real and personal, after providing for the bequest to my said wife and two grandsons before named, the children of my late son William, deceased. This bequest to each of my three daughters to be held in trust by my executor, &c.
    
      “ Sixth. I give to my sons, Nathaniel, Samuel, and Benjamin Franklin, each one ninth part of my estate, both real and personal, after providing for the bequest to my wife and two grandsons, children of my son William, deceased; this bequest to my said three sons to be held in trust by my executor, &c.
    “ Seventh. After the decease of my said wife, Mary, the said sum before mentioned, of not less than forty thousand dollars, or whatever amount may be invested by my executor in trust to produce the annual income of two thousand dollars, for the support of my said wife, the said sum so invested shall remain, during thirty years from her decease, the income of which shall be equally divided by my executor, among my before named nine children, or their heirs.
    “ Eighth. My executor is hereby authorized to sell all my real estate, including the dwelling-house given my wife, after her decease, when he may think best to do so.”
    
      It further appeared that the complainant was appointed, by the will, the sole executor thereof, and took upon himself the trust; that the testator died on or about the second day of June, 1843, without altering or revoking his will, leaving his widow, five sons, three daughters, and two grandsons, Franklin H. and William R. Hooper, above named, these being, the only heirs at law of the testator; that Benjamin F., one of the sons of the testator, died, intestate and without issue, in the lifetime of his father; that Samuel, another son of the testator, survived his father, but died, intestate and without issue, in the lifetime of the widow; that Franklin H. Hooper, one of the grandsons above named, had also deceased; that the widow died on the fourteenth day of April, 1850; and that, after her death, the complainant, as executor, sold the real estate, plate, and furniture of the testator.
    The bill alleges inconsistent and conflicting claims by the parties entitled to the testator’s estate, and prays the direction of the court in the distribution or other disposition of the trust fund of forty thousand dollars, and the proceeds of the sale of the dwelling-house, furniture, and plate.
    William R. Hooper, by his answer, claims, as the sole representative of his father William, deceased, to be allowed a full share in and of so much of the property and estate of the testator, as by the complainant’s bill it appears he has not divided among the heirs or legatees of the testator; to wit, one full eighth part of all the remainder of the estate ; alleging that the reversion of the life estate of the widow in the sum of not less than forty thousand dollars, and in the real estate, plate, and furniture, had not been devised or bequeathed by the testator, but was left to be divided, in due course of law, as intestate estate, among the testator’s legal heirs and representatives; and that the seventh clause in the will above recited was inoperative and void.
    
      G. P. Curtis, for the complainant.
    1. The limitation of the trust for thirty years after the decease of the widow is void. Jarman on Wills, c. 9, § 2; Roper on Legacies, c. 24, § 1.
    2. Where the residuary legatee is general legatee, he is entitled to what remains after satisfying the debts and legacies, including what may, by lapse, or invalid disposition, or other casualty, fall into the residue. Cambridge v. Rous, 8 Ves. 12; Hayden v. Stoughton, 5 Pick. 528,537, and numerous cases cited by the counsel for the demandants; Prescott v. Prescott, 7 Met. 145 ; Brown v. Higgs, 4 Ves. 708 ; Leake v. Robinson, 2 Meriv. 363, 392, 393.
    3. If the testator circumscribes and confines the residue, then the residuary legatee, instead of being a general legatee, becomes a specific legatee. Attorney-General v. Johnstone, Ambler, 577 ; Easum v. Appleford, 5 Mylne & Craig, 56.
    4. Very special language is necessary to reduce a general residuary bequest to a special residuary bequest. Bland v. Lamb, 2 Jac. & Walker, 399, 406.
    5. Where a residue is given, every presumption is to be made that the testator did not intend to die intestate, as to any of his estate. Phillips v. Chamberlayne, 4 Ves. 51; Cush-ing v. Aylwin, 12 Met. 169, 175.
    6. It is not necessary that the testator should use the word residue, &c.; any words indicating that whát was left, after paying or satisfying the debts and specific legacies, should go in a particular direction, are sufficient to carry a residue. Bland v. Lamb, 5 Mad. 412; S. C. on appeal, 2 Jac. & Walk. 399 ; Legge v. Asgin, 1 Turn. & Russ. 265, n; Boys v. Morgan, 9 Sim. 289 ; S. C. on appeal, 3 Myl. & Craig, 661; Kellogg v. Blair, 6 Met. 322.
    7. Where the testator directs his executor to sell his real estate, it becomes personal estate, and goes with the residue of the personalty. Durour v. Motteux, 1 Ves. Sen. 320; Ken-nell v. Abbott, 4 Ves. 802; Fleming v. Burrows, 1 Russ. 276 ; Leighton v. Bailie, 3 Myl. & Keen, 267; Clowes v. Clowes, 9 Sim. 403; Green v. Jackson, 2 Russ. & Myl. 238.
    8. The words, “ one ninth part of my estate, both real and personal,” constitute each legatee a general legatee of that aliquot part of the testator’s whole estate. Briggs v. Hosford, 22 Pick. 288; Kellogg v. Blair, 6 Met. 322.
    9. General legacies are favored by the court, rather than specific ones. Briggs v. Hosford, 22 Pick. 288.
    
      10. If a devise of land is void, because the devisee is incapable of taking, the land goes to one to whom the testator has given all the residue of his estate, or all his estate undisposed of. Hayden v. Stoughton, 5 Pick. 528, 536.
    11. Since the alteration of the laws respecting after purchased real estate, real estate not specifically disposed of, or the devise of which should fail, would go to the residuary legatee, and not to the heir at law. Prescott v. Prescott, 7 Met. 141,146 ; 2 Roper on Legacies, c. 24, § 1, under nearly all the above points.
    
      J. M. Bell, (with whom was R. Choate,) for W. R. Hooper.
    1. The limitation in trust, under the seventh clause of the will, is void, as tending to create a perpetuity; and, therefore, the sum thus devised in trust fell in, upon the death of Mrs. Hooper, to go to the general heirs of the testator’s estate, unless otherwise disposed of by the will. 1 Jarman on Wills, c. 9, § 2.
    2. The property bequeathed under the first clause of the will fell in, at the death of Mrs. Hooper, to go to the general heirs of the testator, unless otherwise disposed of by the will, since she had but a life estate.
    3. The will contains no clause or words sufficient to carry a residue to any person named in it, and, therefore, this property goes to the general heirs. No case is found, in which a phrase clearly indicating the residue is not contained, making mistake impossible. “ Any thing that I have forgot,” Bland v Lamb, 5 Mad. 412; “ In ease there shall be any money remaining,” Legge v. Asgin, 1 Turn. & Russ. 265, n; “ And keep the residue,” Boys v. Morgan, 9 Sim. 289, 290; “ Not disposed of as above,” Kellogg v. Blair, 6 Met. 322.
    4. The testator did not intend the devise to the nine de-visees ’ as a residuary devise, otherwise he would not have subsequently made the disposition in trust of the forty thousand dollars, which he did in the seventh clause.
   Shaw, C. J.

Robert Hooper, of Boston, the complainant, executor and trustee under the will of his father, Robert Hooper, late of Marblehead, brings his bill, setting forth the will and the trusts under it, and setting forth the conflicting claims of several of the legatees and heirs at law, for the purpose of obtaining the direction of this court, under its equity jurisdiction, in regard to the true construction and legal effect and operation of the will, and in regard to the right performance of his duties under it, in the execution and performance of the trusts. All the devisees, legatees, and heirs at law of the said Robert Hooper, deceased, were made parties to the suit. By an order, heretofore entered in this suit, the bill is ordered to be taken for confessed against all the respondents, except against William R. Hooper, a grandson of the deceased testator, who has made his answer.

No question arises as to the jurisdiction; it is the plain case of trusts arising under a will, and therefore within the equity jurisdiction of the court, by the terms of Rev. Sts. c. 81, § 8.

The great question arising in the case is, whether, by his will, the testator disposed of the whole of his real and personal estate. It is contended, on the part of the respondent, William R. Hooper, that, in regard to the $40,000 fund, to be created by the executor, and held by him during the life of the wife of the testator, and also the dwelling-house and furniture devised to her for life, with authority to the executor to sell the same, no disposition is made of the reversion expectant on the determination of her life, that it remained, therefore, to pass by inheritance, as intestate estate, and that, by right of representation of his deceased father, he was entitled to his share of it.

It may be proper, first, to consider that provision in the seventh item of the will, which directs the executor, in regard to the $40,000 set apart and invested, to raise an income for the wife during her life, which is, that, after the death of his wife, the said sum, so invested, shall remain during thirty years from her decease, “ the income of which shall be equally divided by my executor, or his successors, on receipt thereof, amongst my before named nine children, oi their heirs.”

It is admitted and claimed by both parties, that this clause in the will cannot be held valid, and we are clearly of that opinion. It tends to keen the estate open and unsettled for a longer time than is allowed by the rules of law; and it is contrary to the rules of law in regard to perpetuities. That clause in the will, therefore, is to be treated as inoperative and void, and as if it had not been inserted; and the estate is to be distributable immediately from .and after the decease of the widow.

The testator having given his widow the dwelling-house and furniture for life, with power to the executor to sell both the house and furniture, and the executor having, after her decease, executed that power, the proceeds stand upon the same footing as the estate itself; and, as the will affected both the real and personal estate, whether the real estate would have passed by devise or descent, the proceeds will pass in the same manner. No distinction, therefore, need be made between the two sums, the $40,000 fund, and the proceeds of the real estate and furniture ; if the will be such as to dispose of the one, it will in like manner dispose of the other. On the contrary, if the one descended, as intestate, to the heirs at law, the other would descend, and to the same persons.

This brings us to the main subject of controversy. If the testamentary gifts by the testator to his six sons and three daughters amounted to a general disposition of his estate, including the reversion expectant upon the termination of the widow’s life estate, it passed by the devises to them, and left nothing to descend as intestate property. This depends on the terms and right construction of the will.

In the fourth clause, he says, “ I give to my sons, Robert, John, & Henry, each one ninth part of my estate, real and personal, after providing for the bequest to my wife and to my two grandsons before named.” The word “ after ” used in such a connection, is often and properly construed to mean “ subject to,” “ after taking out, deducting, or appropriating.” It is this which gives meaning and significance to the words “net,” “residue,” “remainder,” and “ residuary,” so familiar in testamentary dispositions. The fund, the subject matter from which something was to be taken or deducted, was “ my estate, real and personal.” The term “ estate ” is regarded as of very large import, and, unless limited by some epithet, or some association, is construed to mean all the party’s property ; but, when the words'real” and “personal” are added, it seems to put the matter beyond cavil. Then, what is to be deducted or excepted out of this general mass of property ? Two specific money legacies to grandsons, subject to a condition, and a life estate in a house and furniture, and the income of a fund not less than $40,000 to the wife. This gift of a life estate clearly left a reversion ; and this appropriation of the income of a capital fund left the fund itself undisposed of. But both the reversion and the capital fund were part of the testator’s estate, and, not being within the part excepted or taken out, passed by the devise. A reversion may pass under the term estate, if not restrained or qualified. Then, let us look at the first branch of the above bequest. I give to my son Robert one ninth part of my estate, real, &c., after, &c. The word “ give ” is of the largest signification, and is applicable as well to real as personal estate. It is, then, a testamentary gift of one ninth of his whole property, deducting and excepting therefrom only the life estate and the income of the capital fund; the reversion, that is, the estate itself, subject to an intervening right for life, and the capital fund, after the decease of the wife, were not within the exception, therefore, they were included in the gift. The two ninths to John and Henry were of the same effect. Three other ninths are given away from the testator and his heirs, to the three daughters, only they are placed in trust; and three other' ninths to his three other sons, likewise placed in trust. Thus, by the fourth, fifth, and sixth clauses of the will, the entire nine ninths, or whole estate, are disposed of by the will. The whole estate is given, subject to certain precise and specific exceptions; these have been deducted and appropriated ; so that the whole remaining estate comes under the operation of the will, and, therefore, there is nothing to pass by descent, as undevised.

Some other points, embraced in the argument, require consideration.

It anpears, by the facts, that Benjamin F. Hooper, one of the sons, died in the lifetime of the testator, intestate and without issue. This legacy, therefore, lapsed and failed to take effect. As the residuary property, including the $40,000 capital fund, the proceeds of the dwelling-house and furniture, and the reversion therein, were not given to the sons and daughters as a class, or to take share and share alike, but one part was specifically given to each son and daughter, the legacy of Benjamin F., which thus lapsed and fell into the general estate, did not vest in the survivors ; but, by a gift of one ninth to each of the eight children who survived, each could claim only his aliquot part, and, therefore, one ninth of the testator’s general estate remained undisposed of by the will, and, therefore, must descend and be distributed, as the intestate estate of the testator. In this distribution, the two grandsons, William R. Hooper and Franklin H. Hooper, both living at the decease of the testator, by right of representation of their deceased father, William Hooper, would take together one share, equal to that of the eight surviving sons and daughters, giving them together one ninth, or one moiety of one ninth each. As this was personal property, and Franklin H. had deceased, when the right to distribution and payment accrued, his share will properly go into the hands of his personal representative, to be disposed of in a due. course of administration. The surviving brother, William R., may ultimately be entitled to the share of the deceased, as heir and distributee ; but the estate will be first liable for the payment of the debts of Franklin H., if he left any, and other charges on his estate; and in such case, William R. would claim, by force of the statute of distributions, as heir of his brother. But William R. will be entitled to the other moiety of this ninth in his own right.

As to the share of Samuel Hooper, one of the sons, it appears, by the facts, that he survived his father, but died in the lifetime of the widow. One ninth vested in him, and, being personal property, it must go to his personal representative, to be administered. It being found that he died intestate and without issue, his one ninth, after due administration, and subject to debts and charges on his estate, if any, will go to his heirs at law, under a decree of distribution. In such distribution, William R., if he alone survived his uncle Samuel, or he and Franklin H. together, as tenants in common, if both survive, would be entitled to one share, equally with the surviving brothers and sisters .of Samuel, under the rule of descent in this commonwealth, extending the inheritance, by right of representation, to brothers’ and sisters’ children. But this is not the subject for any decree in the present case, because it is the duty of the complainant, as executor and trustee, to pay this share to the personal representative of Samuel Hooper, deceased, without regarding any ulterior disposition of the fund. Decree accordingly.  