115 Mass. 124 | Mass. | 1874
The legatees under the residuary clause of Mrs. HubbelJ’s will are those persons who were her heirs at law at the time of her decease.
The first paragraph in that clause looks to the time of her death, and clearly declares that her heirs at law at that time shall, with the exception named, take as legatees. Standing by itself it is complete and decisive as to the persons who are to take. In this respect it is the prominent and controlling provision. The second and remaining paragraph of that clause appears to be subordinate to it and not intended to change the distribution contemplated. The purpose of the latter is to regulate the proportions in which certain persons shall take in the event of their becoming entitled to the estate under the first paragraph, and directs a departure from the proportions established by the statute if the contingency should arise. It must yield to the leading provision so far as it is repugnant to it.
A devise to heirs designates not only the persons who are to take, but also the manner and proportions in which they take. Where there are no words to control, the law presumes the intention of the testator to be that they shall take as heirs would by the rules of descent. This rule has been many times recognized by this court. It is only necessary to cite a recent case, Bassett v. Granger, 100 Mass. 348.
In the case at bar it does not sufficiently appear from the terms of the will that it was the intention to use the words “ my legal heirs ” in any other than a strict legal sense, and the rule must be held to apply, in determining who are to take.
The general rule must also apply in determining the proportions in which the heirs shall take. The expressions which are said to require a different division in this .case are not, in our opinion, sufficiently clear and decisive to vary its application. Mrs. Sanger, the surviving sister of the testatrix, therefore takes one half, and the children of the deceased sister the other half of the residue. Decree accordingly.
