278 Mass. 244 | Mass. | 1932
The question before us is the interpretation to be given the words “my heirs at law” in the fifth article of the will of Martin L. Hall. The principle to be followed in answering it is to get at the intent of the testator and to give it effect unless some positive rule of law prevents. Temple v. Russell, 251 Mass. 231, 235, 236. Crowell v. Chapman, 257 Mass. 492.
Martin L. Hall executed his will in 1871. His family then consisted of his wife, Josephine S., and an only child, George G. Hall. Although the record does not so state in words, it is apparent that the testator then had no other issue. The will shows that he contemplated that there might be further issue of his marriage. By the law then in force, Gen. Sts. cc. 91 and 94, his heirs at law were the issue of his marriage; and, if no issue remained at the time of his death, his heirs at law would be his living brothers and sisters and the descendants of deceased brothers and sisters by representation. The rights of the widow as a statutory heir need not be stated. They are immaterial here. The same law was in force at his death.
By the fifth article of his will he gave to trustees “such sum of money as shall equal the amount of as many times Seventy Five Thousand Dollars as the number of my children living at the time of my decease,” to hold, manage and take care of; to divide into as many shares as there should be living children; to apportion one share to each child; to apply so much of the income of each share as they shall see fit to the education, maintenance and support of the child during its minority accumulating the balance,
By the nineteenth article, the residue of the estate, after payments of debts, legacies and sums as provided by the will and the decease of the widow, was to be similarly divided into as many shares as there were children living at the testator’s decease, each share to be held “upon the same trusts for the same purposes and for the use and benefit of the same persons as hereinbefore declared in Article Fifth of this Will,” except that provision was made for distribution of portions when the child reached twenty-one and thirty years of age, subject to power in the trustees to retain the fund if in their judgment it was for the best interest of the beneficiary to retain control.
If he intended by the words “my heirs at law” to mean those who would be his heirs at law at the time of his death, then, in all probability, he was giving to his children the remainders in fee after the expiration of the beneficial life estates devised to them, and, in large part, was undoing what he had sought to do by the spendthrift provisions of his will. This remainder, on that assumption, could vest in possession in any person other than a representative of a child of his only if he survived the longest liver among his children and all the issue of his deceased children. If, however, he meant by those words those who would be his heirs at law if he were to die immediately after the holder of the life estate, then his spendthrift provisions would have full effect, and his brothers and sisters or their issue would probably take the remainder. We think the latter was his intention. No power of disposition by will over the remainder was given to any child. After the death of the life tenant, the trustees were to hold to the use of “my heirs at law,” and thereafter to convey. It is improbable that it was intended to direct the trustees to hold to the use of a dead man; yet no other meaning is possible if the fife tenant was the heir at law contemplated. We think an intention appears from the will that no child of the testator shall have an interest as his heir at law in this remainder.
The testator died in 1875, leaving his widow and his son George G. Hall surviving. He had had no other child.
The trustee filed its petition for instructions setting out that cláims for the funds were made by George’s widow as executrix of his will; by claimants under the will of Josephine S. Hall, widow of Martin L. Hall; by descendants of brothers and sisters of Martin L. Hall claiming as heirs at law of the testator ascertained at the death of George G. Hall but of a class created at the death of the testator; by descendants of the testator’s brothers and sisters claiming as heirs at law of the testator ascertained at the death of George G. Hail and being issue of such brothers and sisters; and by descendants of the testator’s brothers and sisters claiming as heirs at law of the testator ascertained at the death of George G. Hall and being children of such brothers and sisters. The judge of probate held that the executrix of the will of George G. Hall was entitled to the funds, and instructed accordingly. The other claimants appeal.
All parties concede that, ordinarily, the words “my heirs at law” when used by a testator to indicate donees mean those persons who take an estate of inheritance in his estate at his death. Gilman v. Congregational Home Missionary Society, 276 Mass. 580. The judge gave them that meaning here. As was stated in the case just cited at page 583: “Nevertheless the aim in every case involving the interpretation of wills is to ascertain the intent of the testator from the whole instrument and then to give effect to that intent unless prevented by some positive rule of law. Therefore, if the word 'heirs’ is used clearly in some sense different from its correct meaning, or as indicating some restriction upon that class, that meaning will be given effect.” Rules of construction have their binding effect only where the language of the will does not make the testator’s intent clear. In the case before us, as has already
We think there was error in the decree. The heirs at law of the testator who are to take are descendants of his brothers and sisters. George G. Hall was not such an heir. His executrix does not take. The intent to exclude the widow from such “heirs” is manifest from the- twenty-seventh article of the will, already quoted in part, which confined her interest to the specific provision made for her. The testator cannot have thought of her as an “heir.” Those claiming under her will cannot take.
We see nothing to establish a contention that a class fixed at the death of the testator was in his mind as the heirs at law to be determined at the time the gift of the remainder took effect in possession. Where such a gift is made, the heirs are held to be those who would be heirs according to the law in force at that time and not that in force at the time of the testator’s death, unless a different intention is clear from the will. Lincoln v. Perry, 149 Mass. 368. Consequently the contentions of those descendants of the testator’s brothers and sisters must fail who argue for a distribution other than would follow had Martin L. Hall died immediately after his son, in accord with the statutes then in effect, which provided for distribution among “issue” per stirpes, where, as here, all are not in the same degree of kinship.
Ordered accordingly.