85 Mass. 587 | Mass. | 1862
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
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
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
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.