This is a bill in equity by the trustee under the will of Sterns DeWitt Harris, to obtain the instructions of the court. The testator by his will bequeathed specific legacies to his brother, Archibald C. Harris, and his widow, who survived him, but is how deceased. He further devised and bequeathed to the widow an estate for life in all the remainder of his property, both real and personal; which remainder after her decease he gave and bequeathed “ to my legal heirs as the law provides, other than those hereinbefore mentioned.” It is upon the construction of this clause that the questions arise. On the death of the testator, he left surviving him his widow, the brother before mentioned, a niece, Susan L. Harris, the daughter of the same brother, and certain uncles and aunts, brothers and sisters of his father and mother, one of whom has deceased since the death of the testator.
There are three distinct claims; 1. On behalf of Archibald 0. Harris, that he is entitled to the whole of this remainder under the will; or, if not, that the attempted bequest thereof is void for indefiniteness and uncertainty, and that he is entitled to the whole under the statutes of descent and distributions. 2. On behalf of the uncles and aunts, that they are entitled thereto under the description in the will, either together with the niece or to her exclusion. On behalf of the administrator of the one deceased, it is argued that the bequest was one which vested at the death of the testator. 3. On behalf of the niece, that she is entitled to the whole remainder.
We are to ascertain who, at the time of his decease, answered the description given by the testator of those entitled to take
The testator does not use the words “legal heirs” in any very exact way; but technical expressions are to be disregarded, if his meaning can be clearly understood from the provision he has made'. He had but one “ legal heir,” but, in the phrase “ legal heirs other than those hereinbefore mentioned,” he seeks to apply his exclusion to him and to his wife, who, although a distributee of the personal estate, was not an heir. As his property consisted of both realty and personalty, and his reference to his brother and wife is very distinct, he must mean by this term those to whom his property would go by descent, or by the statute of distributions, according to its quality. Sweet v. Dutton, 109 Mass. 589. Bowers v. Porter, 4 Pick. 198. Brimmer v. Sohier, 1 Cush. 118.
The intention of the clause “other than those hereinbefore mentioned ” is to exclude his brother from those who are to take the remainder; and such must be deemed its effect. In order to dispose of that remainder, for it is apparent that he does not mean to remain intestate as to any portion of his property, he seeks to create a class, whom he arbitrarily terms “ legal heirs ” indeed, but from which the only two persons entitled to the real and personal property are excluded. To limit an estate to one’s right heir, excepting A., who actually is the right heir, is inconsistent and incorrect, but it is not unintelligible; the words may be used inartificially to describe persons who would be the right
On behalf of the brother of the testator, it is also contended that, if the effect of the clause “ other than those hereinbefore mentioned ” be to except his brother and widow from taking under the devise, the devise must fail for want of a devisee, unless the words “ legal heirs ” can be shown to have been used by the testator in some sense other than the usual one; and this for the reason that the brother is properly the sole heir-, and also one of those excepted. At the time when the will was made, and at the time it took effect, there was no one answering the description of the devisee if the words are construed technically, - the brother being excluded. Although the brother was the heir presumptive, it is possible .that there could have been before the death of the testator another or others who would have answered the description, as if the brother had died, or as if the testator afterwards had had children, or had adopted them, in which cases persons answering technically the description of the devisees might have been found. But the rule is not that it must be impossible that one should be found who answers the description technically, before wé can construe the words otherwise, as where a devise is made to the children of A. deceased, there being no children living at the date of the will. If it appears that there is no such person as is technically described, and, further, that the testator intended to bestow the remainder upon some one, the inference may be fairly made that he intended to
We have examined with care the cases cited by the counsel for the brother, by which it is sought to establish the proposition that, if there could have been any one who might have answered the description technically in the will, the words must be deemed to have been so used. Kelly v. Hammond, 26 Beav. 36, Paul v. Children, L. R. 12 Eq. 16, In re Overhill's trust, 1 Sm. & G. 362, and Dorin v. Dorin, L. R. 7 H. L. 568, are all cases in which the word “ daughters ” or “ children ” was held to mean legitimate “daughters” or “children.” In some of them the argument is suggested that the person whose daughters or children are referred to might thereafter have legitimate children, as reinforcing the conclusion that those who were illegitimate could not take. But the English decisions quite clearly establish that the word “children” is always to be construed as if the word “ legitimate ” were written before it, unless the contrary shall plainly appear. The construction of the word “ children ” is much more liberal where the. rights of those born out of wedlock are not involved, and its strict meaning not so insisted on. Thus in Berry v. Berry, 3 Giff. 134, the word “children” was construed to mean “grandchildren,” although there was a child living at the time of the execution of the will. In Fenn v. Death, 23 Beav. 73, under a bequest to “ children,” none being living at the date of the will, the word was held to mean “grandchildren,” to the exclusion of great-grandchildren.
On behalf of the brother, much reliance is placed on Goodtitle v. Pugh, 3 Brown P. C. 454. A. devised his estate for want of heirs of a prior devisee in these words: “ to the right heirs of me the testator forever, my son excepted, it being my will he shall have no part in my estates, either real or personal.” He
The present case resembles strongly some of those put arguendo by Vice Chancellor Kindersley in Lee v. Lee, 1 Dr. & Sm. 85. He supposes the case, among others, where A. was the only child at the date of the will, and that afterwards the testator had children born, who survived him, and would of course with A. be his next of kin at the time of his death, and that the estate was in express terms devised to A. for life, and after A.’s death to the next of kin. The remainder vests at the death of the testator, and, although A. has a life estate, he is not the less competent to take the remainder, or his share of it; but in such case, the Vice Chancellor says, “ I have no doubt that the persons to take would be the persons who would have been the next of kin at the testator’s death if A. did not exist.”
The next inquiry is as to those who constitute the artificial class whom the testator has sought to create. It cannot be held ■ that the niece is to be excluded because a specific legacy is given j to her father and he is excluded. She is to take, if at all, by; purchase, as a devisee sufficiently described in the testator’s will, | and not as her father’s heir or next of kin. Nor does the use of the plural “ heirs,” as applied to those who are to take, have any material bearing upon the further inquiry whether she is to take alone, or to do so only in a class composed of herself and the uncles and aunts, if it shall be found that she is the one described by the terms of the will, as we have construed their meaning.
It is argued that the question who are to take is to be determined without reference to the statutes of descent and distributions; and that, computing the degrees of kindred according to the rules of the civil law, uncles, aunts and niece are all in the third degree, and will take equally by the general rules of law, irrespective of the statutes referred to.
There is no express reference in the bequest to the statutes-in question, in which respect the case differs from Bullock v. Downes, 9 H. L. Cas. 1. But the phrase used by the testator, “ to my legal heirs as the law provides,” while redundant, shows an intention to refer the subsequent disposition of his estate to the law as it exists, and of which the statutes form a part. The phrase used embraces them. The testator has excluded those who would take the property by the law but for the terms of his will. He then gives it to the class who would take in case of intestacy, were those thus excluded not in existence, and, in determining who constitute that class, reference must be had to the modifications of the common law made by statute.
The fifth clause of the Gen. Sts. c. 91, § 1, is as follows: “ If he ” (i. e. the intestate) “ leaves no issue, and no father, mother, brother, nor sister, then to his next of kin in equal degree; except that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those "who claim through the nearest ancestor shall be preferred to those claiming through an ancestor who is more remote.”
There being no issue, the “ next of kin in equal degree ” are the heirs contemplated by the testator, and they are to take “ as the law provides.” While those who take under the will do so as purchasers, the reference of the will to the law which would apply, were his brother not in existence, determines their rights. As thus determined, a preference is given to the niece as the descendant of the nearer ancestor, which operates to give her the remainder to the exclusion of the uncles and aunts of the testator. Decree in favor of the niece.