Holbrook v. Harrington, 82 Mass. 102

Holbrook v. Harrington

82 Mass. 102 | Mass. | 1860

Metcalf, J.

The court are of opinion that, by the eighth clause in Mrs. Holbrook’s will, one half of the property therein mentioned is given to the heirs of her deceased husband, Stephen Holbrook, and one half to the heirs of her brothers and sisters, and that the property given to both classes of heirs is to be divided among them, not per capita, but by right of representation. It happens, however, that as to the heirs of her husband the result of the division by right of representation will be the same as if it were made per capita. The half that *104is given to those heirs is to be divided into nine equal parts, and one ninth is to be received by each of his seven children now alive, one ninth by his grandson, Josiah Holbrook, and one ninth by his granddaughter, Angeline E. Smith. Those persons who were Stephen Holbrook’s heirs at the time of Mrs. Holbrook’s decease are those to whom she gave one half of the residue of her property, and at that time his seven living children and two living grandchildren were his heirs. Rev. Sts. c. 61, § 1. Daggett v. Slack, 8 Met. 450. Tillinghast v. Cook, 9 Met. 148. Childs v. Russell, 11 Met. 16, 23. Cook v. Catlin, 25 Conn. 387. In the first of these cases the law was thus stated by Chief Justice Shaw: “ A devise to ‘ heirs,’ whether it be to one’s own heirs or to the heirs of a third person, designates not only the persons who are to take, but also the manner and proportions in which they are to take ; and when there are no words to control the presumption of the will of the testator, the law presumes his intention to be that they shall take as heirs would take by the rules of descent.”

If Stephen Holbrook’s son William had died without issue, after the will was made, the half that was given by the will to the heirs of Stephen Holbrook would have been divided into eight parts only, namely, one eighth to his living children, and the other eighth to Josiah his grandson, who was one of his heirs, as well at the time of Mrs. Holbrook’s decease as at the time when her will was made. For, when devises are made or legacies given to a class, as in this case, there is no lapse by reason of the death of either individual of the class, before the death of the testator, but the survivors take the whole. Jackson v Roberts, 14 Gray, 546. If said William had left several children instead of one only, those children would together have been entitled to only one ninth; that is, to the same to which their father would be entitled, if he were alive ; and that ninth must have been divided among them, in fractional parts thereof, according to the number of the children. So it must have been, if Josiah, the son of Stephen, had left more than one child.

The foregoing rules and principles of division are to be applied to the other half of the property which was given to the *105heirs of the brothers and sisters of the testatrix, according to the facts in the case.

As no trustee of the children of Lucy Cook is named in the second clause of Mrs. Holbrook’s will, the executor (the plaintiff) is to perform the duty of trustee for her, and therefore there is no necessity for the appointment by the court of a trustee to represent Vernon Stiles Cook in this proceeding. Hall v. Gushing, 9 Pick. 395. Dorr v. Wainwright, 13 Pick. 328.

Decree accordingly.