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48 Mass. 301

Osborne v. Varney

Massachusetts Supreme Judicial Court

Decided November 15, 1843

Massachusetts Supreme Judicial Court · decided 1843-11-15

This was a bill in equity, in which it was alleged that Betsey Varney, late of Salem, by her last will, which had been duly proved and allowed, devised and bequeathed to the plaintiff certain real estate, a promissory note, and $400 in money, upon the trust and confidence that he should permit Stephen Varney, a brother of said Betsey, to occupy said real estate, and receive the income thereof, and also the interest of said note, during his life, and that the plaintiff should…

Decided 1843-11-15

Shaw, C. J.

¶1The court are of opinion that this clause in the residuary devise, viz. “ to hold upon the same conditions and limitations as are set forth in the above devise in trust to Stephen Varney and his children,” qualifies the whole gift, describes the persons who are to take, and limits the benefit of the devise to Stephen to the same two children, William Henry and Betsey, to whose use the specific bequest was made. “ To Stephen Varney and his children,” is a clause describing the former bequest, and was meant to identify it, and therefore must be construed to mean the two children before mentioned, to avoid repetition, and not to extend the bounty to children generally. We cannot read the will otherwise, so as to give it a sensible construction.

¶2As to the offer of parol evidence, the court are all of opinion that such evidence cannot be received to prove the intention of the testatrix to give this quarter part of the residue after their father’s death, to all the children of Stephen Varney. It is within all the reasons and authorities so fully considered in the late case of Tucker v. Seaman’s Aid Society, (ante, 188.)

¶3The decree therefore will be, that the trust for this quartet *304part of the residue, since the decease of Stephen Varney, is for the benefit of William Henry and Betsey Varney, and that the other children are not entitled to share.

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