Allen v. Boardman , 193 Mass. 284 ( 1906 )

Rugg, J.

The testator, Charles H. Gould, after disposing in numerous bequests of a large part of his property, devised the residue in the following language: “All the rest, residue and remainder of my property, real, personal, or mixed, to the persons who at my decease are my heirs at law, such heirs at law to share the same equally.” The testator had in his lifetime two sisters, and at his decease left as his heirs at law an only surviving sister, Caroline E. Boardman, two nieces, Mary E. Long and Caroline E. Denny, daughters of his deceased sister, and Alanson L. Daniels, a grandnephew, son of a deceased daughter of his deceased sister. The single question presented by the reservation is whether the remaining estate is to be distributed between these heirs at law per capita or per stirpes. No assistance as to the interpretation of the disputed clause can be derived from the other provisions of the will.

It is a well recognized rule of testamentary construction that a devise to heirs “ designates not only the persons who are to take, but also the manner and proportions in which they are to take.” Daggett v. Slack, 8 Met. 450. This rule must prevail here, unless the words of the testator, “ such heirs at law to share the same equally,” indicate that a different disposition was intended. Words of this general description in wills have frequently been interpreted. In Holbrook v. Harrington, 16 Gray, 102, the language of the testator was “to be equally divided between the heirs of my late husband and the heirs of my brothers and sisters”; in Houghton v. Kendall, 7 Allen, 72, “ to pay over to the children who may be the surviving heirs of said Susan’s body, to be. divided in equal shares among them”; in Balcom v. Haynes, 14 Allen, 204, the devise was, “ to my brothers, A., B., and 0., and my sisters, D. and E., and the heirs of F., to be divided in equal shares between them ”; in Bassett v. Granger, 100 Mass. 348, the language was, “to the heirs of my late husband and to my heirs equally”; in Rand v. Sanger, 115 Mass. 124, “I give, devise and bequeath to be equally divided among those persons who shall be my legal heirs at the time of my decease ” ; in King v. Savage, 121 Mass. 303, the devise was for the benefit of four children of a sister of the testator during their lives, “ and upon the decease of either of them, the principal of his or her share shall be equally divided among the heirs at law of such deceased person ”; in Hall v. Hall, 140 Mass. 267, the property was “to be equally divided among all such issue or children, share and share alike ”; in Cummings v. Cummings, 146 Mass. 501, the testator provided for a division “ equally between my blood relations of the degree which the law permits ”; in Townsend v. Townsend, 156 Mass. 454, the testator directed a distribution equally between the families of himself and his first wife and himself and his second wife; in Siders v. Siders, 169 Mass. 523, the testamentary phrase was “in equal shares by right of representation” to certain named nephews and nieces; and in Coates v. Burton, 191 Mass. 180, the bequest was “ to her lawful issue share and share alike.” In all these cases, although not in all the substantive ground of decision, the words of the testator were said to indicate the intention to make a stirpital distribution.

It is impossible to draw any line of distinction in principle between the language used in the case at bar and that passed upon in the adjudications we have referred to. It may well be that the testator phrased his residuary clause in view of some of these decided cases, and intended thereby that his property should be divided with an equal regard to the rights of all his heirs at law as defined by the statute of distribution, or that equality of division among his heirs which the law provides. The words “ to share the same equally ” may be given effect by being applied to the division between the classes of his heirs, and not to that between the four individuals who constituted all his heirs at law. The administrator should be directed to distribute one half of the residue to the surviving sister, and one sixth each to the other three heirs.

Decree of Probate Court reversed,.