## Facts

- A testator died in 1941 leaving a will that placed most of his estate in a residuary trust providing successive income interests to his widow, then to his son’s family, and ultimately a distribution of principal to descendants of his grandchildren.
- After the widow’s life interest, the trust income was paid among the testator’s grandchildren in equal shares; the will used phrases such as the grandchildren “share equally” and income “divided equally amongst my grandchildren.”
- The will set trust termination for twenty-one years after the death of the last surviving child of the testator’s son, with principal then “equally divided amongst the lineal descendants of my grandchildren.”
- The will did not expressly address (a) what happens to a grandchild’s income share if that grandchild dies before the trust ends, or (b) who receives income during the twenty-one-year period after the last grandchild’s death but before termination.
- After the testator’s death, additional grandchildren were born; the son later died, and trust income was being divided into six equal shares among the six grandchildren.
- One grandchild (Thomas III) died in 1987 after serving as trustee, leaving a widow and a single child (Jennifer).
- A petition for declaratory relief in Probate and Family Court sought construction of the will to determine who was entitled to Thomas III’s former one-sixth income share and how income should be handled during the post-grandchild twenty-one-year period.

## Issues

1. Whether the trust’s income gift to “grandchildren” created a class gift with survivorship so that a deceased grandchild’s income share shifts to surviving grandchildren.
2. Whether the will instead permitted a deceased grandchild’s issue to take that grandchild’s income share by right of representation.
3. Who is entitled to trust income during the twenty-one years after the death of the last grandchild and before the trust’s stated termination and principal distribution.

## Decision

- The court declared that the will did not provide a survivorship class gift among the grandchildren as to trust income.
- The court held that the issue of a deceased grandchild succeeds by right of representation to the deceased grandchild’s income share.
- Jennifer, as Thomas III’s issue, was entitled to receive the one-sixth share of net trust income previously payable to her father, rather than having that share redistributed among the surviving grandchildren.
- As to income during the twenty-one-year period following the death of the last grandchild, the court construed the will to provide for payment to the lineal descendants of the grandchildren consistent with the overall distributive plan, rather than allowing an extended period with no income beneficiaries.

## Legal Principles

- A presumption that a gift to a class carries survivorship yields when the instrument, read as a whole and in context, indicates an intent for representation and continuity of enjoyment along family lines.
- Repeated references to equal sharing among class members may show an intent for equality, but do not alone establish survivorship or extinguish a deceased member’s line absent clear language.
- In construing a will creating a long-term trust with future distributions keyed to descendants, courts favor interpretations that implement the apparent plan and avoid an unreasonable gap in beneficial enjoyment.
- When the drafting leaves contingencies unaddressed, courts may draw reasonable inferences from the dispositive structure—particularly the relationship between income provisions and the ultimate distribution to descendants—to supply coherent directions for current administration.

## Conclusion

The court construed the testamentary trust to continue each grandchild’s income share down that grandchild’s line by representation, entitling the deceased grandchild’s child to the former one-sixth income share and providing for income distributions after the last grandchild’s death in a manner consistent with the will’s descendant-focused distribution scheme.


Dewire v. Haveles, 404 Mass. 274, 534 N.E.2d 782 (1989)