201 Mass. 218 | Mass. | 1909
This is a petition by the trustee under the will of Isaac Cook for leave to convert certain real and personal estate into cash, and to distribute the proceeds to such persons as may be entitled thereto under the provisions of the will. The trustees were directed, by the seventh and eighth clauses of the will, to hold certain real and personal property upon the trust, first to pay the income thereof to a grandson of the testator, William W. Cook, during his life, and to Frances A. Cook, his wife, if she survived him, during her life. The trust was to terminate upon the decease of the survivor of these two, and the trustees were directed as to the property held under clause seven to thereupon convey the estate “ to and among the right heirs at law of said William W. Cook, agreeably to the statutes of Massachusetts regulating the descent of intestate estates, the issue of any deceased child taking its parent’s share.” As to the property held under clause eight, they were directed to dis
William W. Cook died within a year prior to the filing of this petition.
The question presented is whether the second wife, Harriet F. Cook, shares under the provisions of the will of Isaac Cook, or whether the property is to be divided wholly among the children of William W. Cook.
If the word “ right ” had been omitted from the clauses above quoted governing the final distribution of the estate, there would be no question but that the second wife would be entitled to share in the estate. R. L. c. 140, § 3, cl. 3, creates a surviving wife a statutory heir of a deceased husband, who leaves issue. It is true that by R. L. c. 132, § 1, the wife is given the right to waive her inheritance and claim her dower at common law, but we construe this statute to mean that the wife stands upon the same footing respecting the interest in the real estate of a deceased husband, where the deceased leaves a widow and issue, as she does where the deceased leaves no issue, in which event she is given at least $5,000 and one half the remaining real and personal estate. It has been repeatedly held that in the latter event the wife is a statutory heir. She is included among those who take real estate in fee in case of intestacy, which is the familiar definition of heir at law. Proctor v. Clark, 154 Mass. 45. Smith, petitioner, 156 Mass. 408. International Trust Co. v. Williams, 183 Mass. 173. Holmes v. Holmes, 194 Mass. 552, 559. Gray v. Whittemore, 192 Mass. 367, 381.
The only doubt arises from the presence of the word “right” before “ heirs ” in these two clauses of the will. These two
But it is not necessary to determine whether the phrase under all circumstances necessarily is equivalent to legal heirs or whether it may sometimes have the meaning of heirs by the blood, or possibly some other significance, for it is manifest from the will now under consideration that the testator intended to have his estate distributed according to the statutes of descent. We need only apply the cardinal rule of will construction, which is to ascertain the intent of the testator and give it effect, unless prevented by some inflexible rule of law. Attributing to the phrase, “ right heirs,” standing by itself, the restrictive force claimed by the children of William W. Cook, it is altogether overborne by the emphatic, technically accurate and indisputably clear language of the will immediately succeeding the words, “the right heirs at law of William W. Cook,”
As there is real estate devised by both clauses of the will, the whole property, both real and personal, will go to those who technically are described as heirs, there being no indication that more than one class is intended. Gardner v. Skinner, 195 Mass. 164. The decree of the Probate Court is reversed, and a decree should be entered giving one third of the estate to Harriet F. Cook, the second wife, absolutely, and dividing the rest equally among the five children of William W. Cook.
So ordered.