Colby v. Duncan
Massachusetts Supreme Judicial Court
Petitiok for partition of certain land in Haverhill. The case was submitted to the Superior Court, and, after judgment for the respondents, to this court, on appeal, upon agreed facts, in substance as follows: The petitioner claimed an undivided third part of the land, under a deed dated April 30, 1884, from the widow and two of the children of James H. Duncan, who died in 1869. He left a will, by the second clause of which he gave a legacy “ to each of my seven children who…
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Petitiok for partition of certain land in Haverhill. The case was submitted to the Superior Court, and, after judgment for the respondents, to this court, on appeal, upon agreed facts, in substance as follows: The petitioner claimed an undivided third part of the land, under a deed dated April 30, 1884, from the widow and two of the children of James H. Duncan, who died in 1869. He left a will, by the second clause of which he gave a legacy “ to each of my seven children who may survive meand by the third clause of which he gave to his wife, besides certain personal property, “ the use,…
1Opinion of the CourtC. Allen, J.
It is conceded that this petition cannot be maintained, if the interest which the children of James H. Duncan took under his will in his real estate was a contingent remainder. The devise is clearly limited to the children who may be living at the decease of the testator’s wife, and until that event happens it cannot be ascertained who will take. Were anything necessary to fortify this construction, it would be found in the earlier bequest to each of the testator’s children who may survive him. He thus draws a clear. distinction between those who are to take under these two different clauses.…
2Cases cited3 opinions
- Thomson v. LudingtonMassachusetts Supreme Judicial Court · 1870
- Denny v. KettellMassachusetts Supreme Judicial Court · 1883
- Smith v. RiceMassachusetts Supreme Judicial Court · 1881
3Cited by8 opinions
- Clarke v. FayMassachusetts Supreme Judicial Court · 1910
- Bunting v. SpeekSupreme Court of Kansas · 1889
- Wood v. BullardMassachusetts Supreme Judicial Court · 1890
- Irvin v. StoverWest Virginia Supreme Court · 1910
- Carter v. DavisHawaii Supreme Court · 1907
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