On June 25, 1920, Atle H. Fretheim died; and in due course there .was admitted to probate his will, executed on June 7, 1909. It consisted of the following: (1) A direction to the executors to pay debts and funeral expenses; (2) these words: “After the payment of such funeral expenses and debts, I give, devise and bequeath to my legal heirs according аs the law provides;” and (3) the appoint- . meht of two executors and the revocation of “all former wills.”
The deceased left, him surviving, neither wife nor children, father nor mother, brother nor sister. He had had 5 brothers and sisters. When the will was made, 3 were living, 2 sisters having died some 2 years before. The others died after the will was made but bеfore the passing of the testator. All the brothers and sisters left children. In each of 3 of the families, there are 3 children. In another, there are 5. Ingeborg Bell, one of the sisters, now deceased, left 14 children, all of whom are living. Certain of the nieces and nephews have died, some with, and some without, children.
The probate court distributed the estate to the 28 surviving nieces and nephews per capita. On appeal to the.district court . there were 2 decisions, one by Judge Meighen, on the day before his
It is first contended that the will is too indefinite to operate as a testamentary disposition of property. The case has proceeded thus far upon the theory thаt its efficacy is beyond question. It is too late now for the appellants to adopt a new and wholly inconsistent theory. But, passing that,' we have no difficulty in concluding that the will, though unusual as to form, is a valid testamentary disposition of the property, and all of the property, of the testator. He selected the executors who were to distribute his estate, and revoked “all former wills.” It does not change the character of the will as such that his entire property is given to those who would take in case of intestacy. That the testator intended to distribute all his property to his “legal heirs according as the law provides,” is clеar.
Judge Meighen was not required to give “serious consideration to the question of whether the testator intended by the language in his will to incorporate, by reference, the then existing law.” He decided the case upon the assumption that, as the case was presented to him, the law in effect at the date of the deаth of the testator would control, and devoted his attention to the construction of that law. It is necessary, therefore, to consider the statute as it stood in 1907, when the will was made, and the changes that have taken place since.
It was the opinion of Judge Meighen that, because the 1917 law referred to and amended expressly only the old statute concerning real estate, it did not touch at all the one concerning personal propеrty. His view was that when a statute adopts a part or all of another statute, by specific and descriptive reference, such adoption takes the statute as it exists at that time; and subsequent amendments, or a repeal of the adopted statute, have no effect on the adopting statute. That is an unquеstioned rule, but not to be applied where the clear legislative intention is to the contrary. In our opinion it does not apply to the statutes now under consideration.
The common law notion of the distinction, for purposes of descent and distribution, between real and personal property, was discаrded
This conclusion is put beyond question by the title of the act of 1917, which is: “An act to amend section 7238, General Statutes 1913, of the state of Minnesota, relating to the descent of real and personal property.”
Chapter 173, p. 229, Laws 1921, has nothing to do with the case. That act, according to its titlе, was to amend the statute “so as to provide for escheat of personal property in certain cases.” The language then added to the statute has no other effect than to provide for escheat of personal property “if the intestate leaves no spouse nor kindred.”
If the testаtor intended to distribute his propery according to the law as it was at the time he made his will, we must now hold (in agreement with the final decision in the district court) that the nieces and nephews and the children of deceased nieces and nephews take, not per capita, but per stirpes. The testator could have limited his beneficiaries, bоth as to identity and method of distribution, to the statutory method then in force. Did he do
It is our duty to ascertain the testator’s intent. That is difficult, .for neither inside nor outside the will do we find any efficient aids. Perhaps we are dealing with contingencies which never occurred to the testator. If it is such a case, that is, if the testator never thought of the situation now presented, we must yet construe and apply the will. Our task in such case is to say if possible what he would have done had he thought of the instant question.
There is no suggestion that he favored any one niece or nephew, or any family group of them. There is no suggestion that, his sis■ters and brothers being dead, he would object to an equal division of his estate among his nieces and nephews. There is nothing to indicate that he would want the three children of one family to take as much as the 14 in another.
If testators will persist in using words of technical import, without explanatory context, their beneficiaries can not complain if courts continue to give such words effect according to' their long accepted legal definition. So here, in the absence of any indication in the will that the word “heirs” should have other than the meaning which has long been applied to it when it is unaccompanied by explanatory context, we must adopt such meaning. “In the absence of a contrary intent, words descriptive of the objects of a gift refer to the death of the testator, and not to the date of his will or period of its execution. Thus, under a gift to fluctuating classes, as children or descendants, all who answer the description at the death of the testator are entitled, irrespectively of those to whom the description was applicable at the date of the will, but who subsequently died in the testator’s lifetime.” Yates v. Shern,
“The words ‘heirs or next of kin’ are technical legal words, and in their legal sense bear within themselves an indication as to the time intended for fixing the class, which cannot be overlooked. The legal relation or status of ‘heir’ or ‘next of kin’ arises only upon the death of the ancestor, and it arises immediately. In a legal sense therefore, ‘heirs’ implies a reference to the time of the ancestor’s death, and if a testator makes a devise or gift to his ‘heirs’ or ‘next of kin’ those standing in that relation at the time of his death would seem to be the persons intended, unless there is something in the will itself to show that the testator had anоther period in his mind, and that the legal sense of the words is to be restricted by indications that some other time is fixed.” Tuttle v. Woolworth, 62 N. J. Eq. 532, 538,
The respondents rely, and the final decision in the district сourt was based, upon Be Swenson’s Estate,
Because he did not indicate that the word “heirs” was to have .any other than its ordinary legal significance, and in the absence of controlling considerations leading to another result, - we hold that the word “heirs” as used by Mr. Fretheim means those who would take his property in case of intestaсy. “According as the law provides” is an equivocal phrase referring no more to the date of its use than to that period of the then future to be marked by the passing on of the user.
This decision not only has the effect of putting the 28 nieces and nephews on an equality, but it also excludes the children of deceаsed nieces and ilephews, whereas if the estate were distributed undér subdivision 4 of section 3648, R. L. 1905, those grandnieces and nephews would take, by right of representation. This result follows because under the old law, there being no surviving issue nor spouse nor father nor mother, the estate “shall descend in equal shares to his brothers and sisters, and to the lawful issue of any deceased brother or sister, by right of representation.” The grandnieces and nephews are the grandchildren and as such, issue of the deceased brothers and sisters. This ordinary meaning of “issue” has been adopted here by statute. Subdivision 8, § 9412, G. S. 1913.
On the other hand, if the estate is distributed, as we hold it must be, under sectiоn 7238, G. S. 1913, as amended by chapter 272, p. 410, Laws 1917, there being no issue of the testator, and no spouse, father, mother, brother nor sister, the estate “shall descend to his next kin in equal degree.” Here the “next kin” are the surviving nieces and nephews and they take to the exclusion of the children of deceased nieces and neрhews. This effect of the statute has never been passed upon by this court except as it was involved in Staubitz v. Lambert,
The order appealed from is reversed. There is no occasion for a new trial. The case is remanded and the final decree of the probate court will be affirmed.