| Mass. | Jun 19, 1889
The material portions of the residuary clause of the testator’s will are as follows: “ All the remainder and residue of my estate, real, personal, and mixed, of which I may die seised or possessed, or to which I may be entitled at the time of my decease, shall be divided into four equal parts, which I give, devise, and bequeath as follows, to wit: one of said parts to my brother, Benjamin F. Perry, to have and to hold the same to him during his life and at his decease to his heirs at law and their heirs and assigns forever; another of said parts unto Judith Perry, the -wife of said Benjamin F. Perry, to have and to hold the same to her during her life, and at her decease to her heirs at law and their heirs and assigns forever.” The testator’s birthplace was in Keene, New Hampshire, where he resided in his youth, and where at the time of the execution of his will he owned two pieces of real estate, which he retained and owned at his death; but he was domiciled in Malden, Massachusetts, when his will was executed, and thenceforth until he died. The testator died on April 24,1877, and his will was dated October 10, 1874. Judith Perry died at Troy, New Hampshire, on January 24, 1884,. where for over thirty years immediately preceding her death she and her husband, Benjamin F. Perry, were domiciled, and lived together as husband and wife. The property given by the residuary clause consisted of personal property only in this State, and a piece of land in said Keene, which the testator owned at the time of the execution of the will, and ever after until his death. Upon these and the other facts reported, the question is, Upon the death of Judith Perry, who became entitled to the fourth part
These questions, so far as we are called upon to deal with them, relate only to the disposition which the trustee is to make of the personal estate given by the residuary devise. There was no real estate in Massachusetts which was included in the residuary devise. The plaintiff, having been appointed trustee in New Hampshire for the purpose of selling the land there situated, and having made sale of it accordingly, will account for his disposition of the proceeds of such sale in the courts of that State.
A majority of the court has arrived at the following conclusions in reference to the disposition of the personal property over which we have jurisdiction.
1. The testator has appointed a common destination for all of said fourth part of the residue of his property, whether the same is real or personal. The words should not be construed to mean that the real estate should go to one set of persons, and the personal estate to another; but the whole residue must go to the heirs, according to the meaning which that word bears at common law, namely, those who would be entitled to succeed to real estate in case of intestacy. Fabens v. Fabens, 141 Mass. 395" court="Mass." date_filed="1886-03-31" href="https://app.midpage.ai/document/fabens-v-fabens-6422014?utm_source=webapp" opinion_id="6422014">141 Mass. 395, 399, 400.
2. The persons who would be entitled to succeed to real estate in case of intestacy must be ascertained and determined according to the laws of Massachusetts. It has been argued, that the term “ heirs at law ” should be held to mean those who would be the actual heirs of Judith upon her decease, this being determined by the place of her residence; and that therefore the determination who should take as her heirs should be made according to the laws of New Hampshire. But the question after all is, What is the meaning of the testator’s words ? and we are brought to the conclusion that the true meaning is, to designate a set of persons who were to take the estate upon Judith’s death, and that those persons are styled her heirs at law. This set of persons would not fluctuate with any changes of residence that she might make. The testator would probably not be familiar with the laws of different States. He lived here,
3. Under the decision in Lavery v. Egan, 143 Mass. 389" court="Mass." date_filed="1887-01-10" href="https://app.midpage.ai/document/lavery-v-egan-6422300?utm_source=webapp" opinion_id="6422300">143 Mass. 389, the husband of Judith Perry must be considered as her heir, to an amount not exceeding five thousand dollars in value. The statute giving to him this right was passed after the death of the testator. St. 1880, c. 211, § 1. But'the testator, in providing that at the decease of Judith Perry the portion of the residue which she had held for her life should go to her heirs at law, must be held to have meant her heirs at law as ascertained by
4. Testimony to show that the testator did not wish to have Judith’s husband receive anything under the devise to her heirs at law was incompetent. Tucker v. Seaman’s Aid Society, 7 Met. 188. Osborne v. Varney, 7 Met. 301. American Bible Society v. Pratt, 9 Allen, 109. At the time the will was drawn, he would not have been included under that designation. His right arises from the subsequent change in the statutes; and the testator must be held to have been content to take this chance, since he/ did not in terms provide against it.
Ordered accordingly.