Abbott v. Bradstreet
85 Mass. 587
Mass.
1862
Check Treatment
Hoar, J.

The rule is well settled, as a general rule of construction, that a bequest or devise to “ heirs ” or “ heirs at law ” of a testator, will be construed as referring to those who are such at the time of the testator’s decease, unless a different intent is plainly manifested by the will. Doe v. Lawson, 3 East, 278. Bird v. Luckie, 8 Hare, 301. Philps v. Evans, 4 De Gex & Smale, 188. Where such an intent is plainly manifested, it will of course prevail. Horn v. Colemam, 1 Smale & Giff. 169, and 19 Eng. Law & Eq. R. 19. Gundry v. Pinnigu, 14 Beav. 94. Tiffin v. Longman, 15 Beav. 275. Where it is a remainder after *590a life estate, it is regarded as a vested remainder, and the possession only is postponed. 2 Jarman on Wills, 52. This rule is a consequence of the preference which the law gives to vested over contingent remainders. A leading case, which has been repeatedly followed and cited with approbation, is Holloway v. Holloway, 5 Ves. 399; where a testator bequeathed ¿65000 in trust for his daughter for life, and 'after her decease for her children living at her decease, in such shares as she should appoint; and in case she should leave no child, then, as to ¿61000, in trust for the executors, administrators and assigns of the daughter; and as to ¿64000, the remainder, in trust for the person or persons who should be his heir or heirs at law. The daughter died without leaving children; and she and two other daughters were the testator’s heirs at law. The master of the rolls held that the prima facie construction of the words, and their legal meaning, would be “ heirs at law at the testator’s own death ; ” and that he could not, upon the ground that the daughter was one of the heirs, conclude that heirs at a subsequent time were intended. The doctrine of this case was fully recognized in Sears v. Russell, 8 Gray, 86; although upon special circumstances the intent of the testator was there found to be a gift to those who were heirs at the time of distribution. And see Dingley v. Dingley, 5 Mass. 535; Shattuck v. Stedman, 2 Pick. 468; and Bowers v. Porter, 4 Pick. 198.

The case of Rich v. Waters, 22 Pick. 563, is apparently in conflict with the current of decisions. There the testator gave to his wife the use of thirty shares of bank stock ; and directed that “ said shares, at her decease, shall be divided equally between my heirs.” This was held to be a contingent remainder; the court seeming to take it for granted, without discussion or citation of authorities, that the “ heirs ” intended w;ere those who would be such at the time the remainder would become due and payable. Mr. Justice Putnam says: “We think the testator in the case at bar intended that the property should be distributed as an intestate estate after the decease of his wife; and whether Mrs. Waters will ever live to take any of it as an heir of the testator is wholly uncertain.” But it would have *591been equally uncertain, if the will had only given the estate for life, and had left the remainder to descend as intestate estate: and it is certainly no test to determine whether a remainder is vested or contingent, to find that the devisee may not live to the period of distribution or possession.

It has been held in some cases that, if there is a gift to a person for life, with remainder to the testator’s next of kin, and the person taking the life estate is the sole next of kin at the. death of the testator, the remainder will be considered as given to the persons answering the description at the termination of the estate for life. Jones v. Colbeck, 8 Ves. 38. Long v. Blackal, 3 Ves. 486. And where the prior legatee, whose interest, on his death without issue, is divested in favor of the ulterior gift to the testator’s next of kin, was one of such next of kin at the time of the testator’s death, this has been deemed a sufficient ground for construing thé words to mean next of kin at the happening of the contingency. Butler v. Bushnell, 3 Myl. & K. 232. But both these classes of cases are generally recognized as exceptional, and the construction adopted is usually strengthened by some special circumstances indicative of intention. Briden v. Hewlett, 2 Myl. & K. 90. Most of them are cases of a bequest over, upon failure of some prior object of the testator’s bounty. No case has been cited, with the exception of Rich v. Waters, in which the remainder has been given directly to the testator’s heirs, on the expiration of an estate for life or lives merely, and the expression has been held to import any other than heirs at the time of his death.

On the other hand, there have been a succession of decisions in which the doctrine of Holloway v. Holloway, has been approved and followed. Rawlinson v. Wass, 10 Eng. Law & Eq. R. 113. In Nicholson v. Wilson, 14 Sim. 549, the gift was to the testator’s daughter Sarah for life, then to his other children, and, if all were dead, then to his personal representatives ; and his daughter Sarah and the representatives of his other children were held to be entitled.

In Seifferth v. Badham, 9 Beav. 370, the testator created a trust for the benefit of his children from and after the decease or second marriage of his wife, and upon the death of all his *592children without issue, then “ to assign his personal estate unto and equally between his next of kin according to the statute of distributions.” Lord Langdale held that the next of kin living at the testator’s death were entitled to the ultimate gift, although they were his two children. Urquhart v. Urquhart, 13 Sim. 627, confirms this decision. In Lasbury v. Newport, 9 Beav. 376, a testator gave his residuary estate to one of his daughters for life, with remainder to her children, and in default, to his next of kin. It was held, that the class of next of kin was to be ascertained at the testator’s death; and they were his two daughters, one of whom was the legatee for life. In Ware v. Rowland, 2 Phillips R. 635, a testator directed his executors to set apart a sum of stock to answer an annuity to be paid to his daughter, who was then his only surviving child, for her life, and on her death to divide the principal among her children, if she should leave any, on their attaining respectively the age of twenty four; if no child who should attain that age, to pay out of it two small legacies, “ and all the rest and residue of the said principal fund he gave and bequeathed to and amongst his heirs at law, share and share alike; ” and in another part of his will appointed his said daughter by name his general residuary legatee. Lord Cottenham held, confirming the decision of the vice chancellor, that as sole heiress at law and next of kin of the testator at the time of his death, she, and not his heir at law or next of kin at the time of her death, was nevertheless entitled to the fund set apart for the annuity, under the ultimate gift. He rests the case upon the authority of Holloway v. Holloway, and observes : “ Suppose a testator, after making all such provisions as he was anxious about, finds that in certain events all these provisions might fail, and, having no other object in view, might naturally wish that the law, with respect to the disposition of his property, should take its course. If he so expressed his wish, his heir or next of kin would take in the event of the provisions failing; but as that might not take place until some distant period, it would be uncertain who would, at such time, stand in the place of such heirs; and the testator might therefore very naturally express such wish in the terms used in this will.”

*593These considerations apply with still greater force to the case at bar. The testator gives to a granddaughter, the child of a deceased daughter, $8, “ which is to be in full of any share she may be entitled to out of my estate; ” and to the illegitimate son of another deceased daughter $25, “ to be in full of all claim or demand he may make or have against my estate.” He directs the sale of his real and personal estate by his executor, its investment in stocks or personal securities, and the payment of the income to his children, and the survivors or survivor of them, until the decease of the last surviving child, “ at whose decease the said fund is to go and descend to my heirs at law.” The words “ go and descend ” are significant, as indicating the wish of the testator that the remainder should be distributed as if it were intestate estate. He gives no direction to his executor respecting it, not even to pay it. If the executors could be considered as taking a fee by implication in the -eal estate, by reason of the power to sell and invest, they take nothing in the equitable estate beyond the lives of the children. We think the intent of the testator was to appropriate the income of his estate to the support of his surviving children so long as any of them should live, and that beyond that he had no purpose to make any testamentary disposition. The small legacy to the granddaughter was probably given to avoid the consequence which he feared might follow if nothing were given her in the will — a claim to take her mother’s share as if he had .died intestate. She comes within the description of the class to whom the remainder is bequeathed, and is not to be excluded unless by express words, or by necessary implication.

The direction given to the trustee will therefore be to pay the remainder of the estate in his hands to the heirs of the testator who were such at the time of his death, and their legal representatives. The account settled in the probate court is conclusive as to the amount with which the trustee is chargeable, in the absence of fraud; and the reasonable costs of the litigant parties, to be taxed and allowed by the court, are to be paid out of the fund.

Decree accordingly.