White v. Stanfield , 146 Mass. 424 ( 1888 )

Devens, J.

The case at bar has been argued somewhat at cross purposes by the counsel who have respectively represented before the court, on the one side, the widow, and on the other, the sister and niece of Edward G. Robinson.

The claim as made on behalf of the widow is, that the fund of $10,000 of which the testator’s son Edward G. was to have the income during life is to be treated as a gift of personal property upon his decease to those who were then his next of kin or his distributees, and that by the words “ to his heirs at law ” the testator intended to designate those who would have taken as the distributees of his personal property had the fund actually heen the property of Edward Gr. at his decease ; and thus, as he left a widow, but no issue, she is entitled to one half thereof as his personal property, such being the law of Massachusetts when the will was made and when the testator died. By the law as it now exists, the widow in such case is entitled to $5,000 of the personal property of the husband and one half of the excess above $10,000. These sums amount together to the sum of $5,710.12, which is the same amount as one half of the personal property; so that this change in the law as applied to the case at bar makes no difference in the amount to be received by the beneficiary, if the claim on her behalf is maintained.

On behalf of the sister and niece it is urged that the words “ heirs at law ” cannot be interpreted as meaning next of kin or distributees; that they apply solely to the realty, and designate as those who are to take the fund in controversy those who at the decease of Edward Gr. were entitled to estates of inheritance in his real property; that by the law in force when the will was made and when the testator died the widow did not inherit any part of her husband’s real estate, but it would have been divided between his sister and his niece, so that she cannot have been designated as an “ heir at law”; and that although by the law in force (St. 1880, c. 211) when Edward G. died his widow would have been entitled to his real estate to the amount in value of $5,000 and an estate for life in his remaining real estate in lieu of dower, the will must be construed by the law which prevailed when the will became operative. It was further urged, that even if this is not so, and if the present law is to govern in determining what persons come within the meaning of a gift to “ heirs at law,” the St. of 1880, c. 211, did not make the widow in any proper sense an heir of her husband, as it did not cast upon her an estate of inheritance in his lands upon his decease, but gave her only a right to a certain provision to be made therefrom.

While it has not been urged on behalf of the widow that she was entitled to take as one properly designatéd as an heir at law by virtue of the statute of 1880, but her claim has been rested upon the ground of her rights to which she would be entitled as distributee in the personal property of her deceased husband, and while the amount which she would receive in the two events would differ, it is to be presumed that this claim might be made on her behalf if that originally made by her is rejected. It does not appear by the bill for instructions and the answers thereto to have been distinctly set forth, but these are of course susceptible of amendment, and it might be necessary to consider it unless the widow shall be found entitled on the ground first taken on her behalf.

An examination of the will leads to the conclusion that the testator intended that the sum of $10,000 should be dealt with as personal property during the lifetime of his son, and that it should be distributed as such at the decease of the son, unless the use of the words “ heirs at law ” in describing those to whom it is to pass shall compel us to hold otherwise. The only real estate described in the will of the testator was a farm in Michigan, which he devised to Edward G. The instrument contains several distinct and independent trusts, which consist of funds to be held for the benefit during life of certain cestuis que trust, and which at their decease respectively are variously disposed of.

The trust for the benefit of Edward G. was the sum of $10,000, to be held by the trustee during the natural life of Edward G., to pay to him the income thereof, and “ to pay over . . . the principal of said fund on his decease to his heirs at law.” The fund was to be invested by the trustee as he might think safe and judicious, but there is no suggestion that it should be invested in real estate, nor do we find anything looking to its division as such. The parties entitled to the income of the various funds were to receive “ a sum equal to one quarter-year’s interest in advance on their respective funds,” and, as there might be delay after the decease of the testator in the formation of such funds, the beneficiaries for life were until that time to receive quarterly full interest on the amount of their respective funds. The fund created for Edward G. consisted of personal securities, and has always remained thus invested. It is fairly to be inferred from the direction that the fund should be paid over on the decease of Edward Gr., from the fact that interest is to be paid on an equal amount until the fund is formed, and from the other circumstances of the case, that it was to be kept and dealt with as personal property.

Where, even in the case of a gift of personal property at the decease of one who was to enjoy a life income therefrom, it was clear that the testator intended that “ heirs at law ” strictly so termed should take the property from which such income was drawn, they would so take, not as such, but as persons whom the will described, and who might be described by the class to which they belonged as well as by their names. Where a gift of the income of personal property has been made, and then such property is bequeathed to “ his heirs,” or his “ heirs at law,” many English decisions have held that those who are strictly so must take to the exclusion of the next of kin or distributees. Smith v. Butcher, 10 Ch. D. 113. Low v. Smith, 2 Jur. (N. S.) 344. De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524.

Such has not been so clearly the tendency of the decisions in Massachusetts, which have paid more regard to what seemed the intention of the testator, and, ascertaining this, have endeavored to follow it. While words must certainly receive the sense which they ordinarily have, yet it may be shown by the context that the testator has sought to impress upon them a different sense, and if so, this will then be followed. Minot v. Harris, 132 Mass. 528. In Loring v. Thorndike, 5 Allen, 257, where a bequest of personal property was made by a codicil in lieu of a devise of real estate to the same person in the will, and this was so expressed in the codicil, it was held that the intention of the testator was clearly indicated that the word “ heirs ” as applied to the personal property should bear its legal sense. But in Houghton v. Kendall, 7 Allen, 72, where the gift was of a sum of two thousand dollars at the decease of one entitled for life to the income thereof, it is said: “ In this Commonwealth we find no authority which would conflict with the adoption of the construction which seems to us reasonable, that when the word ‘heirs ’ is used in a gift of personalty, it should primarily be held to refer to those who would be entitled to take under the statute of distributions, ■ and to indicate that they should take in the same manner and in the same proportions as if it had come to them as intestate estate of the person whose ‘ heirs ’ they are called.” Upon this ground the case is decided. To the same effect is Sweet v. Dutton, 109 Mass. 589.

The sister and the niece rely much on the cases of Merrill v. Preston, 135 Maqs. 451, and Fabens v. Fabens, 141 Mass. 395. In Merrill v. Preston, the will in terms authorized “ the fund to be invested in real estate, and looked to its possible division in that form,” although it was personalty when it was handed over. But it is said, “If the deed before us had contemplated a trust of personalty only, there would have been a stronger, although not necessarily a conclusive, argument in favor of construing an ultimate limitation to heirs in a sense adapted to the mode in which personal property devolves.” Fabens v. Fabens belongs to the same class of cases as Clarke v. Cordis, 4 Allen, 466, and Lombard v. Boyden, 5 Allen, 249, in which it is held that where real and personal estate are blended in a single provision, and the rents, profits, dividends, and income are to be paid to one for his life, and at the death of the life tenant the trustee is to convey and pay over the same to his legal heirs, there being no indication that more than one class is intended, or that the two kinds of property are to go in different directions, the whole property will go to those who are technically described as “ heirs.” In Fabens v. Fabens the trust property devised and bequeathed consisted of real and personal estate, the life income of which went to the wife and children of the testator. The language of the court is: “ The heirs of the children do not take in their parents’ place, by way of substitution to the same estate, but they take an independent, substantive gift of the whole property, subject to a life interest therein which is given to the testator’s wife and children. There is nothing in the will which shows any intention that the real estate should go in one direction and the personal in another. The provision is a single one, and is found at the beginning of a separate paragraph.”

In the case at bar those who are to take after the life estate do not take by way of succession or substitution, but an independent substantive gift; but that which they are to take is, personal property, intended to be kept as such, and thus to be paid over at the decease of the life tenant, and notwithstanding the use of the words “ heirs at law,” it should be paid to his distributees, and one half thereof to his widow, as a person so entitled under the statute. The words do not appear to have been used technically, nor would it have occurred to a testator, unless his attention had been called to it by legal advice, that he was in danger by use of them of sending this property in a different direction from that it would have taken if it had actually been the property of his son. Indeed, his object was not, we think, so much to make an additional bequest after providing carefully for the income of his son for life, as to relinquish the property from which it was derived to the disposition of the law. It is said in Minot v. Harris, ubi supra, that “ the phrase used by the testator,” who had bequeathed his property to his wife for life, and at her “ decease ‘to my legal heirs as the law provides,’ while redundant, shows an intention to refer the subsequent disposition of his estate to the law as it exists, and of which the statutes form a part.” Where a testator establishes a fund consisting of personal property for the purpose of providing an income for life for his son, and this is apparently his principal object, and when after his son’s decease he directs it to be paid over to the son’s “ heirs at law,” his intention is not so much to make a bequest of it, or direct further how it shall go, as it is to surrender the disposition of the fund, as if it were actually the son’s, to those upon whom the law would in such case devolve it.

As in our view the fund is to pass as personal property, it will be. unnecessary to consider what would be the character of the widow’s estate therein if treated as real property.

While the bill sets out that the administrator of Edward G. Robinson claims the whole estate, this was not seriously contended. He is entitled to that portion of the income of the fund which accrued between July 1 and October 16, the day of the life tenant’s death. Pub. Sts. c. 136, § 25. Adams v. Adams, 139 Mass. 449.

The widow as distributee of the personal property is entitled to one half the trust fund, and the sister and niece respectively to one quarter. Instructions accordingly.