Cummings v. Cummings , 146 Mass. 501 ( 1888 )

Knowlton, J.

This ease presents three questions: First, Is the estate of the residuary legatees to be deemed to have vested in those who were the testator’s heirs at the time of his death, or is it to be distributed among those who were his blood relations at the time of the death of his widow? Secondly, Do these legatees take per stirpes or per capita f Thirdly, Was the annual payment of twelve hundred dollars to the testator’s widow, under the second clause of the will, to be made from the income of the estate in the hands' of the executors, or from the principal ?

It seems very clear that the gift of the residuum was to those who were the testator’s blood relations at the time of his death, in accordance with the principle recognized in many cases, that when a bequest is made to one or more for life, and remainder to the testator’s heirs, the bequest is to those who are heirs at the time of his decease, unless there are words indicating a clear intention that it shall go to those who may be in that relation at the time of the happening of the contingency upon which the estate is to be distributed. Blanchard v. Blanchard, 1 Allen, 223. Bay v. Sylvester, 2 Gray, 171. Pike v. Stephenson, 99 Mass. 188. Gibbens v. Gibbens, 140 Mass. 102, 105.

The term “ blood relations ” in the sixteenth clause of the will is equivalent in this case to heirs, and the words “ equally between my blood relations of the degree which the law permits ” seem to have been used to denote the mode of distribution provided by the statute. The will was not drawn by a lawyer, and the language was not accurately used, but it clearly indicates that the testator had in mind the relative rights of heirs differing in relationship to a deceased person, under the law. The word “ equally ” in this connection is not inconsistent with this view. The testator probably meant by it, with equal regard to the rights of every one as defined by law. Viewing the whole expression most favorably to those who seek a distribution per capita, it was merely equivalent to “ equally among my heirs,” and where that is the language the division is according to the Statute of Distributions. “A devise to heirs designates, not only the persons who are to take, but also the manner and proportions in which they take.” Rand v. Sanger, 115 Mass. 124. See also Balcom v. Haynes, 14 Allen, 204; Holbrook v. Harrington, 16 Gray, 102; Hall v. Hall, 140 Mass. 267; Booth v. Vicars, 1 Collyer, 6; Fielden v. Ashworth, L. R. 20 Eq. 410; Inre Campbell's Trusts, 33 Ch. D. 98.

There is much in the situation of the testator in reference to the number of his heirs of different classes, and the effect which the opposite construction would have upon the distribution of his estate, and in the manifestation of his intention towards different heirs in other parts of his will, to strengthen this view. We are therefore of opinion that the distribution among the legatees under this clause should be made per stirpes, and not per capita.

By the second clause of the will the executors were required to pay to the testator’s widow twelve hundred dollars annually, in quarterly payments, during her life; and by the sixteenth clause, to keep the residue invested, and pay her the income thereof for the same period. The legacy of twelve hundred dollars annually was an annuity, and the testator contemplated the retention in the hands of the executors of the means of paying it. Swett v. Boston, 18 Pick. 123. Stephens v. Milnor, 9 C. E. Green, 358. The annual income of the entire fund in their hands under the will was about six thousand dollars, and the question is whether the annuity was payable from the income or the principal. The very nature of an annuity suggests, when those charged with the payment of it have in their hands a fund producing income sufficient to pay it, that the payment should be made from the income, and not from the principal. In this' case the payments were to be made quarterly, and the income regularly accruing would naturally be expected to be used for them, rather than sums deducted from the fund. It has been expressly held, that, where a testator gives an annuity without stating from what source it is to be paid, and then divides the rest of his estate among several persons, it is the duty of the executors before distributing the capital, either to appropriate a sufficient amount of the capital to purchase an annuity, or to reserve enough of it to yield ah income amply sufficient to meet the annuity, leaving such portion of the capital to be the subject of another distribution when the annuity has ceased. Treadwell v. Cordis, 5 Gray, 341. See also Wroughton v. Colquhoun, 1 DeG. & Sm. 36; Richardson v. Hall, 124 Mass. 228.

That rule applied to the present case would have left the widow, under the sixteenth clause of the will, only that portion of the entire income which remained after deducting sufficient to pay her annuity of twelve hundred dollars under the second clause. Her executors, therefore, are not entitled to the amount which they now claim.

Decree accordingly.