Wright v. Gooden ( 1881 )

delivered the opinion of the court which held that inasmuch as they were not in the possession of a tenant or rented, the devise of the rent of them was equivalent to a devise of the premises themselves to the son, Samuel, and that he took an immediate estate in them for the term of his life, with remainder to the testator's own heirs, and that his two sons, Samuel being one of them, and his two daughters, therefore, each took a remainder in the one-fourth part of the estate expectant upon the determination of Samuel's life estate. In the case of Minot v. Tappan, 122 Mass., 535, the testator devised a portion of his estate to trustees in trust for the benefit of his son A., during his life and if he should leave a widow, for her benefit during her life, and if he should die leaving no widow, but leaving children, the trust estate was to be conveyed and transferred by the trustees to such children and the issue of any deceased children "and in default of any such child, children or issue then living, then in trust to convey and transfer the same to his (the testator's) heirs-at-law, to hold the same to them, their heirs and assigns forever." The son, A., died thirty-four years after the testator without having married, but B., another son of the testator, died before A., leaving a widow and children. The question was whether under the last clause of the devise above quoted, the son, B., took an interest in the trust estate which vested on the death of the testator, and the court held that he did. Also in the case of Dove v. Torr,128 Mass., 38, the devise in question was as follows: "I devise to those of my daughters who shall not have married at my decease, all the residue of my real estate, to have and to hold the same to them and the survivor of them for their lives and during the life of such survivor, they and the survivor of them continuing unmarried; the marriage of any one of my daughters who take under this item shall terminate her interest and life estate under this devise. After the marriage or death of any surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs." The question of construction in that case was similar to the question in the case now before us, and the court held that the devise over was to those who were the heirs of the testator at the time of his death, and Gray, C. J., said in delivering the opinion that the word "then" is not here inserted by way of description of the persons who are to take under the devise, but by way of defining the time when they shall come into the enjoyment of that which is devised to them; nor is the devise to those who would have been the testator's heirs-at-law if he had died at that time. A devise to the testator's "heirs or heirs-at-law" is always construed as referring to those who are such at the time of the testator's death, unless a different intent is plainly manifested by the will. In Mortimer v. Slater, 7 Ch. Div., 322, a recent case in the court of chancery in England, a like construction was given to a bequest of personal property. In that case it was held that the bequest in the will of one-fourth of a fund to one of four daughters of the testator for life, and after her death to her children then living, but if she left no child, then the interest on it should be paid to his other daughters then living and the survivors or survivor of them, and after the decease of the last survivor of them that the same fourth share should be divided among her children, or if there should be no such children, that the same should be paid to such person or persons as will then be entitled to receive the same as his next of kin under the statutes for the distribution of intestates' estates. One daughter died after the testator, leaving children; the other three afterwards died without issue, and the court held that the class," or persons then entitled to receive it under the statutes referred to, were to be ascertained at the death of the testator, and that the shares of the daughters who died without issue, to each of whom a similar bequest of a fourth of the fund had been made in the same terms in the will, were divisible in fourths among the persons representing the four daughters.

We are, therefore, of the opinion that the devise in this case of all the lands referred to by the testator, at the death of his said daughters to his heirs forever, constituted a remainder in fee in them which immediately vested in all his heirs-at-law on his death, and who consisted of all his sons and daughters who survived him and were living at that time, and when it was immediately ascertained in law as a fact that they were then his legal heirs, according to the maxim nemo estheres vircutis, and not a contingent remainder which vested only in such of them as were living at the time of the death of his last surviving daughter, Mrs. Whitby; and upon the case stated that the judgment of the court should consequently be entered for the defendants in the action.