## Facts

- Lillian G. Pope died in 1931, survived by her son Ernest F. Pope, her daughters Grace M. Morse and Ella B. Robertson, and her grandson Ralph A. Robertson.
- By clause Fourth of her will, Pope gave her homestead to Grace and Grace’s husband, Alvah W. Morse, for their lives and the life of the survivor, with a power in the life tenants to sell the homestead if necessary or expedient and distribute the proceeds under stated directions.
- Clause Fourth also provided that if, “at the death of the survivor” of Grace and Alvah, the homestead “has not then been sold,” it would go one-half to Ernest, one-quarter to Ella, and one-quarter to Ralph, “or to the issue of any that may then be dead by the right of representation.”
- By clause Fifth (the residuary clause), Pope left “all the rest and residue” of her estate to Ella, Grace, and Ralph in equal shares, “or to the issue of any who may be dead by the right of representation.”
- Ernest died on January 26, 1940, leaving a widow, Essie Pope, and no issue.
- Grace died on June 26, 1940, with no issue; Alvah had predeceased her.
- At Grace’s death (the death of the survivor of the life tenants), the homestead had not been sold.
- Ralph filed a petition in the Probate Court seeking partition of the homestead.
- The Probate Court decreed partition between Ella and Ralph in equal shares, ruling that Ernest’s one-half interest under clause Fourth was contingent on his surviving the life tenant and failed when he died first; the failed share passed into the residue under clause Fifth and ultimately resulted in Ella and Ralph each owning an undivided one-half.
- Essie Pope appealed, contending Ernest had a vested remainder that should pass through his estate.

## Issues

1. Under clause Fourth, did Ernest F. Pope receive a vested remainder in one-half of the homestead at the testatrix’s death, or only a contingent remainder dependent on his being alive at the death of the surviving life tenant?
2. If Ernest’s interest did not vest because he predeceased the surviving life tenant, did the one-half share pass under the residuary clause to Ella, Grace, and Ralph (and then by subsequent devolution to Ella and Ralph)?

## Decision

- The Supreme Judicial Court held Ernest’s one-half interest under clause Fourth was a contingent remainder conditioned on his surviving the life tenant.
- Because Ernest died before the death of the survivor of the life tenants and left no issue, he never acquired an interest in the homestead under clause Fourth.
- Ernest’s failed one-half share passed into the residue under clause Fifth.
- The court affirmed the decree ordering partition between Ella and Ralph in equal shares.

## Legal Principles

- A will is construed to carry out the testator’s intent as shown by the words used, read in light of the entire instrument.
- Although Massachusetts has a rule of construction favoring early vesting, that rule yields where the will’s language shows that the takers are to be determined at a later time and that survival to that time is required.
- Language providing that property is to go to a named person, “or to his issue if he is then dead,” at a stated future event (such as the death of a life tenant) ordinarily makes the named person’s interest contingent on being alive at that event.
- When a testamentary gift fails because a stated condition is not met, the failed gift passes under the will’s residuary clause unless the will provides a different disposition.

## Conclusion

Robertson v. Robertson held that the will’s remainder provision—directing that, if the homestead had not been sold, it would go at the death of the surviving life tenant to Ernest “or to his issue if he is then dead”—made Ernest’s one-half share contingent on his survival to that time. Ernest died before the life estate ended and left no issue, so no interest in the homestead vested in him; his one-half share failed and passed under the residuary clause, leaving Ella and Ralph as equal co-owners subject to partition.


Robertson v. Robertson, 48 N.E.2d 29 (1943)