282 Mass. 231 | Mass. | 1933
This is a petition by the trustees under the will of Bradley S. Bryant for instructions respecting its interpretation and construction. The testator died on July 3, 1918, having executed his will one week before that date. He was survived by his wife, Sarah J. Bryant, a daughter, Edith Eliza Bryant, and a son, B. Franklin W. Bryant. By the will $2,000 was given outright to the widow and
At the hearing before the Probate Court, which is reported in full, there was evidence given by two witnesses, George Phillips Bryant, a nephew of the testator and one of the petitioners, who drew the will, and Georgia Chip-
"The cardinal rule in the interpretation of wills, to which all other rules must bend, is that the intention of the testator shall prevail, provided that it is consistent with the rules of law.” McCurdy v. McCallum, 186 Mass. 464, 469. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 38. Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 583., The question whether the heirs are to be determined at the death of the testator, or at the death of the last surviving life tenant depends upon the intention of the testator as expressed in his will. It is plain that it was his intention to exclude his wife and daughter from participation in the remainder. The fact that both must have deceased before final distribution is some evidence of such an intention to be considered with other circumstances. Welch v. Howard, 227 Mass. 242, 246. Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 584. . At the time the will was executed the daughter was forty-nine years old and unmarried. It is a reasonable inference that the testator anticipated that she would die without children. Adequate provision was made for her during her life. It seems probable in these circumstances that the testator did not intend that she should share in the remainder of his estate. It was said in White v. Underwood, 215 Mass. 299, at page 301: "More conclusive is the fact that the testator by implication excludes the heirs and devisees of his daughter Anna from taking any interest in the remainder after her life estate. For it seems clear to us that the testator intended to exclude
The question remains as to when the heirs of the testator should be determined, at his death or at the death of his wife. When a testator leaves property to his “heirs” or “heirs at law” it is presumed that he intended to describe those persons who are his heirs at the time of his death, unless it clearly appears that he intended they are to be ascertained as of another time. Heard v. Read, 169 Mass. 216, 222. Waverly Trust Co., petitioner, 268 Mass. 181, 183. Gilman v. Congregational Home Missionary Society, 276 Mass. 580. Boston Safe Deposit & Trust Co. v. Waite, 278 Mass. 244, 248. In Heard v. Read, it was said that the reason for this rule is that heirs by the very meaning of the word are those persons who take inheritable real property immediately on the death of the owner if he dies intestate. See also Gilman v. Congregational Home
It has been argued, and was referred to by the judge of probate as bearing on his decision, that the use of the
It is argued that as there are no words of present gift in the will; that as there is only a direction that the trustees “pay over and deliver” to the heirs, it was the intention of the testator that the title should not vest in the remaindermen until the time of distribution. See White v. Underwood, 215 Mass. 299, 301, 302, and cases cited. Although such an inference might be drawn if the clause had ended with the direction to pay over, the provision that Franklin is to take a “vested remainder” prevents such an inference. The remainder to him vested at the death of the testator. To construe the will that Franklin had a vested remainder in one third of the remainder, and the other two thirds were suspended over the life estates and vested at the time of distribution is a construction which reads into the will what cannot be found there. It is nowhere provided that Franklin is to receive only one third of the remainder. It does not appear that the testator intended that heirs be determined at any time other than at the date of his death. We are of opinion that the estate of Franklin is entitled to the whole of the remainder, exclusive of the estates of the wife and daughter. Brown v. Lawrence, 3 Cush. 390. Minot v. Harris, 132 Mass. 528. In re Carter, 99 Vt. 480, 489.
Exceptions were- taken to the exclusion of certain evidence offered at the hearing relating to conversations between the witness George P. Bryant, who drew the will, and the testator’s son, and between this witness and the
We are of opinion that, from the terms of the will and all the circumstances, the life estate given to his wife and daughter was the extent to which the testator intended to provide for them, and that his son had a vested interest in the entire remainder; and that as the son has deceased his estate is entitled to such remainder. The part of the
Ordered accordingly.