KATHLEEN C. DEMELLO vs. MANUEL C. DEMELLO, trustee, and others. [Note 1]

DREBEN, J. The plaintiff brought this action claiming that she, as a "surviving widow," is an income beneficiary under the will of her mother-in-law, Jacintha C. DeMello. A Probate judge held she was not and entered summary judgment for the defendants. We reverse.

Jacintha C. DeMello left all of her property in trust as follows:

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"To pay the income to my children -- Manuel C. DeMello, Angelo C. DeMello, Joseph C. DeMello, John C. DeMello, Clementina C. DeMello, and Mary C. Rodrigues -- equally during the life of each; and upon the death of each to add his/her undistributed income to his/her share of the principal and pay the net income of said child to his/her surviving widow or widower who is living at the time of my death during his/her widowhood;. . . ." [Note 2]

The parties stipulated to the following facts. Jacintha died in February, 1961, leaving six children. Her will was executed in April, 1953, at a time when Clementina, one of her children, was unmarried. [Note 3] On June 24, 1963, after Jacintha's death, Angelo, a son of Jacintha, whose first wife had died in December,

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1962, entered into a second marriage with the plaintiff, Kathleen. He died in 1982. Kathleen was a life in being at the time of Jacintha's death. The trustee made some payments to Kathleen after Angelo's death but has ceased to make such payments.

Jacintha's intent must be ascertained from the entire instrument, giving "due weight to all its language, considered in the light of the circumstances known to [her] at the time of its execution . . . ." Hill v. Aldrich, 326 Mass. 630, 632 (1951). Stryker v. Kennard, 339 Mass. 373, 377 (1959). All parties acknowledge that the purpose of the clause -- "who is living at the time of my death" -- which modifies the words "widow or widower" was to guard against violation of the rule against perpetuities. See Hill v. Aldrich, 326 Mass. at 632; Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev. 638, 644 (1938) ("A provision in the will that the life estate to the widow is dependent upon her being born in the life of T[estator] saves the remainder").

Relying on the following language in Hill v. Aldrich, 326 Mass. at 633, the defendants argue that the term "widow" does not include Kathleen. "Where an estate is given to a person described by relation either to the testator or to other devisees, on a contingency that may or may not happen, and a person is in being at the time of the execution of the will, to whom, on the happening of the contingency, the description would apply, it is a safe general rule to hold such person as intended to be the devisee." Id. In Hill, language similar to that used by Jacintha [Note 4] was construed to exclude a widow of a child of the testatrix who married a second time after the death of the testatrix. In Stryker v. Kennard, 339 Mass. at 378, however, the Supreme Judicial Court referred to the rule in Hill as being "one of construction, not one of law," and said, "A rule of this character must yield whenever a testator or settlor expresses

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an intention to dispose of property in a manner inconsistent with the result obtained by the application of the rule." The Stryker court found such a contrary intention in a provision for the settlor's grandchildren which made reference to a "succeeding wife" of her son. A widow of a subsequent marriage was held entitled to take under language providing an income interest to a widow of the settlor's son. [Note 5]

We think the fact that Clementina was unmarried at the time Jacintha executed her will indicates that she did not intend to limit the term "widow or widower" to mean those persons who were married to her children at the time of the execution of her will. Nor is there any indication in the instrument that she intended to benefit only those persons who were married to her children at the time of her death. For example, it would make no sense to exclude a spouse of Clementina if Jacintha had died before Clementina's marriage.

As we construe her will, Jacintha intended to benefit the widows and widowers of her children. Since not all her children were married at the time she drew her will, we hold, as in Stryker v. Kennard, that Jacintha's intent is not consistent with the rule of construction applied in Hill v. Aldrich. Accordingly, the judgment dismissing the complaint is reversed, and a new judgment is to enter declaring that the plaintiff is a beneficiary entitled to income under the will of Jacintha.

So ordered.