Lavery v. Egan
143 Mass. 389
Mass.
1887
Check Treatment
Field, J.

By the seventh clause of the will, as we construe it, the four grandchildren took, as tenants in common, life estates in the real property of the testatrix, with contingent remainders to their heirs. Pub. Sts. o. 126, §§ 4,5. Gen. Sts. c. 89, §§ 12,13. Putnam v. Gleason, 99 Mass. 454. On the decease of Susan M. Lavery, one undivided quarter of the real property vested by the will in the persons who were then her heirs. These heirs do not take by descent from Susan, but under the will,- as the persons designated to take on the termination of her life estate, and the remainder is contingent, because, until her death, it cannot be determined who her heirs will be. The words of the will “to their respective heirs, executors, administrators, and assigns ” are to be construed as if they read “to their respective heirs and *391their executors, administrators, and assigns,” and the words “ executors, administrators, and assigns” were probably added to make it certain that the heirs took a fee in the real estate, and took the personal property absolutely. The same conclusion is reached if these words are disregarded. Without them, the intent is clear that the grandchildren should take only a life estate, and that, on their decease, respectively, the property should go to their heirs; and this intent is not to be defeated by the addition of formal words like these, when, in the connection in which they are used, their significance is uncertain.

Susan M. Lavery died on December 1, 1884, leaving no issue, nor father or mother, but leaving a husband, who is the tenant in this action, and leaving three brothers, who are the demand-ants. These demandants are the remaining grandchildren of the testatrix, named in the seventh clause of the will. By the will they took a life estate in three quarters of the land demanded, and, if they are the sole heirs of Susan, they took on her death an estate in fee simple in the remaining quarter. This quarter is of less value than $5000. Susan left no estate; and the contention of the tenant is, that, under the St. of 1880, c. 211, § 1, (Pub. Sts. o. 124, § 1,) he would have taken, as heir of Susan, an estate in fee in this one quarter if Susan had died seised of it and intestate, and that on her death he took the same estate under the will, as he was the only person who could be called her heir to this property.

The word “ heir ” of itself imports succession to property ab intestato. Blackstone’s definition is this: “An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor.” 2 Bl. Com. 201. But, in defending the ancient rule that the inheritance shall never ascend, he says: “We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi only.” 2 Bl. Com. 211. After the rule was adopted that inheritances might ascend, the ancestor was the person from whom the inheritance devolved upon the heir, and a child might be the ancestor of his parent. The earliest rules for the descent of real property upon the death of the owner of an inheritable estate were established by the customary law; but the common law has been largely changed in England by statute, and in this *392Commonwealth the descent of real estates held in fee simple has, from very early times, been regulated by statute. It is the law, whether customary or statutory, which determines who shall inherit real property when the owner dies intestate, and the law alone decides whether the word “ heirs ” shall include relatives or connections by affinity as well as relatives by consanguinity. An heir, therefore, is he upon whom the law casts an estate of inheritance immediately on the death of the owner.J Dower and an estate by the curtesy were initiate during the life, and became consummate on the death of the husband or wife who was the owner of an estate of inheritance; and these estates could not be defeated by the alienation or by the will of the owner of the inheritance, and could not be taken for the payment of his debts, and the wife or the husband did not take as heirs, but as purchasers. But by the St. of 1880, c. 211, § 1, if “ any person shall die intestate, without leaving issue living, and shall leave a husband or wife surviving, such husband or wife shall take in fee the real estate of such deceased to an amount not exceeding five thousand dollars in value.” This, by § 2, may be set off by metes and bounds, as partition of land is made, or may be assigned as an undivided portion. Under this statute, the husband or wife ' takes only if the deceased die intestate seised of the estate, and they take in fee. They take also subject to the liability of having the land sold to pay the debts of the deceased and the expenses of administration. If there was ever any doubt about this, the doubt was removed by the St. of 1881, e. 112, § 1, which amended the St. of 1880, e. 211, § 1, by inserting after the word “ deceased ” the words “ remaining after the payment of the debts of the deceased.” See Pub. Sts. c. 134, § 2. In all essential respects, the husband or wife takes an estate in fee under the St. of 1880, e. 211, § 1, precisely as an heir takes; and we think they are to be considered as statutory heirs.

Although in the case at bar the heirs of Susan do not take from her by inheritance, but take as persons designated by the will, yet we know of no way of determining the persons intended by the will, except by ascertaining the persons who by law would have inherited the estate from her if she had died seised of it and intestate. If, in determining who are heirs, we should depart from our statutes and go back to the common law, or to *393the customary law of the county of Kent in gavelkind tenures, we might be required to recognize rules of descent for estates in fee simple which have not been in force in the territory of this Commonwealth since the passage of the Prov. St. of 1692-3 (5 W. & M.) c. 14, 1 Prov. Laws (State ed.) 43. See Anc. Chart. 203. In cases where the word “heirs” in a deed or will has been construed to mean distributees of personal property under the statute of distributions, and that statute has given the whole or a part of the personal property of a deceased husband or wife to the wife or the husband, they have taken the property in the same manner as under the statute. Houghton v. Kendall, 7 Allen, 72. Sweet v. Dutton, 109 Mass. 589. Minot v. Harris, 132 Mass. 528. In re Steevens’ trusts, L. R. 15 Eq. 110. Jacobs v. Jacobs, 16 Beav. 557. Doody v. Higgins, 2 K. & J. 729. Wingfield v. Wingfield, 9 Ch. D. 658, 666. By the English courts, the husband is excluded from, while the wife is included among, the distributees of personal estate, because it is held that a husband does not take the personal estate of a deceased wife by virtue of the statute of distributions. In the case at bar, the husband takes the estate under .the statute, and not by virtue of any marital rights at common law. Milne v. Gilbart, 2 DeG., M. & G. 715 ; 5 DeG., M. & G. 510.

In many of the cases in which it has been decided that the husband is not heir to the wife, or the wife to the husband, there has been1 no statute which has given to either any such estate in the real property left by the other as that given by the St. of 1880, c. 211, § 1; Pub. Sts. c. 124, § 1.

The judgment is reversed, and, as the case is submitted upon agreed facts, judgment may be entered without regard to the form of the pleadings. Judgment should be entered for the demandants for three undivided fourth parts of the land demanded, and for the tenant for one undivided fourth part, and for his costs accruing since he filed the plea under which he disclaimed title to three undivided fourth parts. Cole v. Eastham, 124 Mass. 307. Pub. Sts. c. 173, § 9.

So ordered.