William A. Packard versus Charles A. Packard, 16 Pick. 191

Wilde J. delivered the opinion of the Court. This case depends on the construction of the will of Ames Packard, the father of the tenant and grandfather of the demandants, which, although not very clearly expressed, indicates, as it appears to us, the intention of the testator with sufficient certainty. The will, in the first place,' directs that the whole of his estate, real and personal, or so much as might be needful, should be improved for the support of his widow, so long as she remained such, and of his children until they should become of age.

The estate is then charged with the support of Susannah Joy, the testator’s wife’s mother. And then follows the clause in question, viz., “ I give and bequeath to my two sons, William Packard and Charles A.

Packard, all my lands and buildings, and also my right in a saw-mill, and my right in a pew in the meetinghouse in the north parish of Bridgewater, and also all my farming tools, to be equally divided between them, if they should live to become of age ; otherwise it is my will it should go to one of them.” By this devise the two sons took a vested estate in fee simple, determinable, as to the one who might die first, upon the contingency of his dying under twenty-one years of age.

Here was a charge on the devise, for ihe support of Susannah Joy, which was not made payable out of the rents and profits, and which, by all the authorities, is sufficient to give a fee ; anc^ there is no difference in the words of the will between gift of the farming tools, and that of the real estate ; and it is not to be supposed that the testator intended to give an absolute property in the personal estate, and an estate for life only in the real estate.

But the counsel for the tenant contends, that the contingency has happened by which the estate of William has been determined, he having died before his brother, the tenant, arrived at the age of twenty-one years. This, however, we think would be manifestly against the intention of the testator, and indeed against the express words of the will ; for both have lived to become of age. The intention was undoubtedly, that if one died under age, the other surviving, the whole estate should go to the survivor.

The only remaining question is, whether the demandants are entitled to recover the whole of the demanded premises, or only a moiety. And we are of opinion, that they are entitled to recover the whole. It has been objected, that the division or partition between the brothers is not valid, because the parties at the time had only a reversion; and not a vested estate in possession. If the fact were so, this objection would doubtless be well founded.

But the whole real estate was devised to the two sons, subject to a charge only, and they had, at the time of the division, a vested estate in possession, notwithstanding the charge and the contingency. Judgment for the demandants.