Welch v. Howard , 227 Mass. 242 ( 1917 )

Pierce, J.

This is a bill for instructions by the sole trustee under the will of Nathaniel Whiting. Specifically he asks: " (a) To what person or persons is the estate now held by the plaintiff as sole trustee under the will of said Nathaniel Whiting to be transferred and paid over and in what proportions? (b) Does the plaintiff under the terms of the will of said Nathaniel Whiting and independent of the provisions of R. L. c. 147, § 20, now hold for the purpose of distribution title to the real estate constituting part of the trust property held by the plaintiff under the will of said Nathaniel Whiting at the date of the death of the last survivor of his widow and surviving children?”

By the fourth article of his will, after making certain provisions for the payment of the income of the trust estate to his wife, to his children or their issue and to a brother and nephew, the testator provided as follows: “Upon the decease or marriage of my said wife and the decease of the last survivor of my said four children, my trustees shall divide and distribute all said trust property and estate among my heirs-at-law, according, to the statutes which shall then be in force in said Commonwealth, regulating the distribution of intestate estates, unless my said brother and my said nephew, or either of them, shall then be living. If my said brother and my said nephew, or either of them, shall then be living, my trustees shall, before making said division and distribution among my heirs-at-law, reserve enough of the trust property or estate to secure to them respectively the full provision hereinbefore made for them.”

The question presented is whether the trust estate is to be divided and distributed among those who were the heirs at law of the testator at his death, November 18,1871, and if so, whether among those who were heirs under the then statutes, or those under statutes in force at the date of the termination of the trust; or whether the trust estate is to be distributed among those who would have been his heirs at law if he had died at the date of the death of the survivor of the life tenants on July 7, 1916.

Subject to the cardinal rule in the interpretation of wills that the intention of the testator shall prevail provided it is consistent with rules of law, Sears v. Russell, 8 Gray, 86, Knowlton v. Sanderson, 141 Mass. 323, Welch v. Brimmer, 169 Mass. 204, Heard v. Read, 169 Mass. 216, McCurdy v. McCallum, 186 Mass. 464, it is the general rule “that, in case of an ultimate limitation like that of the fund in question to the testator’s heirs at law, the persons to take are those who answer the description at the time of the testator’s death.” Whall v. Converse, 146 Mass. 345, 348. We are of opinion that the intention of the testator that the remainder should go to those persons who would have been heirs at law of the testator, if he had died immediately after the death of the last survivor of his four children, manifestly appears from the express direction of the testator that the trustees “shall divide and distribute all said trust property and estate among my heirs-at-law, according to the statutes which shall then be in force,”

If such interpretation be not required by the construction of the precise language of this will, as in the will construed by this court in White v. Underwood, 215 Mass. 299, ample and plain reason therefor arises from the fact that the expressed intent, that the interest of the widow in the estate should determine absolutely .on remarriage, would be defeated if the remainder was construed to be vested in the heirs at law of the testator at the death of the testator, or in the heirs at law of the testator at the death of the testator as determined by the statute in force in 1916. Should the second alternative construction prevail, the widow would take a vested interest in fee in the remainder in common with her four children; and, under either construction, as heir at law would take the vested share of any one of the children who deceased without issue, intestate. The provision relating to the disposition of the income upon the death or remarriage of the wife discloses a clear intention to exclude the widow from any interest in principal or income on the happening of either event.

That the intention was not to vest the remainder in the life tenants may be inferred from the fact that they were the sole heirs at law at the time the will was made, that they survived the testator, and that their interest could never vest in possession. Fargo v. Miller, 150 Mass. 225, 230. Welch v. Brimmer, 169 Mass. 204, 212. Heard v. Read, 169 Mass. 216, 223.

We are of opinion that the trustee holds the real estate for the purpose of distribution, independent of R. L. c. 147, § 20, by virtue of the provision of clause four which reads, "my trustees shall divide and distribute all said trust property,” and of the power herein granted in the fifth article to “make, execute and deliver all deeds, leases and other instruments that may be proper in the execution of the trusts and powers conferred upon them.” The wills construed in the cases of Heard v. Read, 171 Mass. 374 and Cronan v. Adams, 189 Mass. 190, contained no direction to the trustees to distribute the estate and are therefore distinguishable.

It follows that Ethel Whiting Otis, Dwight Whiting, George N. Whiting, John Kenneth Howard, Gertrude H. Whitwell, Frances Sargent Howard, and William D. M. Howard subject to his assignment and deed to Hugo F. Ramacciotti, are entitled to one eighth each of the entire estate; and Olivia Howard, William Henry Howard, Anna Dwight Howard, Gertrude Whitwell Howard and Marion Poett Howard, are entitled to one eighth.

Decree accordingly.