Russell v. Hoar, 44 Mass. 187

Russell v. Hoar

44 Mass. 187 | Mass. | 1841

Wilde, J.

This is an appeal from a decree of the judge of probate, and the question is, whether the appellant is by law entitled to administration de bonis non, with the will annexed, upon the estate of Jonathan Heywmod deceased.

The question depends on the Rev. Sts. c. 64, § 14, which authorize the judge of probate, when any sole executor or administrator shall die without having fully administered the estate, to grant letters of administration, with the will annexed, or otherwise, as the case may require, to some suitable person, to administer the goods and estate of the deceased, not already administered.

This provision, clearly and in express terms, gives to the judge of probate discretionary authority to grant letters of administration de bonis non, to any suitable person ;• and consequently, neither the next of kin, nor any other persons, have a *191right to claim the grant of such administration as is provided in respect to an original grant of administration in a previous section of the statute. The statute will admit of no other construction., and it is decisive against the claim of the appellant.

Another question, however, has been argued by counsel, which, as it may become important in the distribution of the estate, we have considered. The appellant is the eldest son of Sarah Russell, the sister of the testator, and her children were his next of kin, and heirs at law at the time of the decease of his widow, Mary Heywood. The claim set up by the appellant is, that he, and the other children of Sarah Russell, are entitled to the share of the estate bequeathed to the said Mary Heywood for life, which, was the income of one third part of the personal property. The ground of the claim is, that the interest, which the heirs of the testator had in this part of his estate, was contingent, and did not vest until the death of Mary Heywood. But it seems to the court very clear, that the vesting of this part of the testator’s estate did not depend on any contingency. The cases cited by the counsel of the appellant are cases of contingent remainders : but no remainder, vested or contingent, was created by the will, as to this part of the estate ; and so as to the real estate, the income of which was given to the wife of the testator so long as she should remain his widow', there is no devise over ; and the reversion, on his death, descended to his two daughters, his heirs at law, as intestate property. This principle of the law of descents was very ably and learnedly discussed in the case of Cook v. Hammond, 4 Mason, 467; and the decision was, that a reversion after a life estate would pass to the heirs of an intestate, in the same manner as an estate in possession. The decision is founded on St. 1805. c. 90, § 1, which provides that “ when any person shall die seized of any lands, tenements, or hereditaments, or of any right thereto, or entitled to any interest therein, in fee simple, or for the life of another, not having lawfully devised the same, the same shall descend in equal shares to his children,” &c. The same terms are used in the Rev. Sts. 61, § 1. That this provision of the statutes embraces rever *192sions and remainders, as was in that case decided, we cannot doubt ; so that as to the real estate, the reversion, after the life estate of the testator’s widow, descended on his death to his two daughters ; and afterwards the same vested, on their deaths, in their mother. And by the § 2 of St. 1805, c. 90, it is provided that the personal estate shall be distributed among the same persons, in the same proportion, to whom the real estate shall by virtue of said act descend. We think it therefore clear, that all the property of the testator, not by him devised and bequeathed, descended to, and vested in, the two daughters of the testator, immediately on his death. It is not necessary, therefore, to consider what is the law of England in a like case, nor to distinguish between the gift of the income of property, and that of the property itself. As to real estate, the common law of descent is different; but that law had no relation to personal property, the distribution of which was first regulated by St. 22 & 23 Car. II. c. 10, and depends altogether on the construr tian of that statute. In Blamire v. Geldart, 16 Ves. 316, it is said by Sir William Grant, that if the testator (in that case mentioned) had given the stock to his wife for life, and at her death to G. P., it would have been clear that he would have a vested interest in nature of a remainder. See also I Roper on Leg. (1st Amer. ed.) 394. It is not, however, necessary to consider the English cases referred to at the argument, as the question depends on the construction of the statute of distributions of this Commonwealth.

As to the sixth part of the personal property given to the testator’s widow on the happening of a contingency, that be comes immaterial, as the contingency has never happened.

Decree affirmed.