Walcott v. Robinson
100 N.E. 1109
Mass.
1913
Check Treatment
Sheldon, J.

The first question presented in this case arises under the will of Elisha Woodward. By the fifth clause of that will the testator gave to Hannah M. Walcott "the rents and use of land with the buildings thereon, situated and numbered sixty-two on Friend Street: To have, hold and enjoy the above bequest to *174the said Hannah M. Walcott during her natural life, and at her decease tо her heirs and their assigns forever, in fee: the said Hannah M. Walcott to come into possession of the above named bequest at my decease.”

It is settled by our decisions that unless there is in this language of the testator, construed in connection with the whole of his will, and in the light of the circumstances which then existed and were known to him, evidence that he intended to give to the word “heirs” something other than its ordinary meaning, the remainder to the heirs оf the life tenant after her decease must be held to be a contingent remainder to those persons whо upon her death should be found to be her heirs. Minot v. Harris, 132 Mass. 528, 529. The remainder would vest at the moment of the termination of the lifе estate; ‍​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌‌‌​‌​​​​‍but until such termination the persons entitled could not be ascertained. Richardson v. Wheatland, 7 Met. 169. Putnam v. Gleason, 99 Mass. 454. Lavery v. Egan, 143 Mass. 389. Blodgett v. Stowell, 189 Mass. 142, 143. Coffin v. Jernegan, 189 Mass. 503. Holmes v. Holmes, 194 Mass. 552, 557. Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35.

But the word "heirs” will be construed tо mean “children” or “issue” when that appears to have been the manifest intent of the testator. Haley v. Boston, 108 Mass. 576. In that cаse it was said that this word, "when unexplained or uncontrolled by the context or by other provisions, has a technical meaning which may not be departed from. Clarke v. Cordis, 4 Allen, 466, 480. But it is often used in a different sense, as meaning only children or issue. Ellis v. Essex Merrimack Bridge Proprietors, 2 Pick. 243. Bowers v. Porter, 4 Pick. 198. It is, in all cases, a question of ‍​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌‌‌​‌​​​​‍intention.” See to the same effect Dexter v. Inches, 147 Mass. 324, 326; Eldridge v. Eldridge, 14 Stew. 89. The petitioners contend that there is clearly manifested in the will an intention of the testator to designate by the word “heirs” the children of Hannah M. Walcott, аnd to give to those children a vested remainder expectant upon the ending of her life estate. They rely upon the decision in Bowers v. Porter, 4 Pick. 198. In that case, the testator by a will which purported to dispose of all his estate dеvised to his daughter Lydia the improvement of a farm, on condition that she should pay a stated sum of money to аnother daughter of his, and provided that the farm should be “equally divided *175between all her legal heirs at her decease.” She had children living when the will was made and when it took effect by the death of the testator. It was held that shе took an estate for life, and that her children living at the death of the testator had a vested remainder in fеe. In the present case also the life- tenant was a daughter of the testator and had children living when the will was made and at the death of the testator. That case was decided in 1827; the will in the present case was mаde in 1846. Accordingly the petitioners contend that the same rule of construction should be followed now that wаs adopted in that decision.

But after the decision in Bowers v. Porter, and before the making of this will, the case of Richardson v. Wheatland, 7 Met. 169, was decided. In that case Bowers v. Porter was somewhat criticised and explained, and the rule ‍​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌‌‌​‌​​​​‍of construction to bе applied was stated, although Bowers v. Porter was finally distinguished and the decision in Richardson v. Wheatland was made to turn upon the construction of the will then before the court. It is true, also, as has been said in behalf of the petitioners, that Bowers v. Porter often since has been cited without disapproval. But except perhaps in a New Jersey case (Eldridge v. Eldridge, 14 Stew. 89), we have not found it cited in support of the doctrine that in a devise of a life estate to a child or descendant of the testator with remainder to his heirs thе word “heirs” should be construed to mean children, so as to give a vested remainder to the latter, instead of creating a contingent remainder in those who should be found to be the heirs of the life tenant upon his deceаse. For example, in Wight v. Baury, 7 Cush. 105,109, Trumbull v. Trumbull, 149 Mass. 200, 202, and Sands v. Old Colony Trust Co. 195 Mass. 575, 579, it was cited as to the effect upon the law of this Commonwealth ‍​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌‌‌​‌​​​​‍of St. 1791, c. 60, § 3, abolishing the rule in Shelley’s case, 1 Co. 219. See now R. L. c. 134, § 4. In Moore v. Weaver, 16 Gray, 305, 307, and Bosworth v. Stockbridge, 189 Mass. 266, 269, it was cited to the point that a vested remainder to children may open to let in after born children up to the time fixed for distribution or enjoyment. In Haley v. Boston, 108 Mass. 576, 579, and Dexter v. Inches, 147 Mass. 324, 326, it was referred to in support of the proposition that the intent of the testator, as shown in his 'will, is to govern the meaning of the words used by him, as in Dunn v. Davis, 12 Ala. 135, and Butler *176v. Huestis, 68 Ill. 594, 602. In Merriam v. Simonds, 121 Mass. 198, 202, it was cited to the point that mere postponеment of possession does not make a remainder contingent. In Minot v. Harris, 132 Mass. 528, 529, it was cited to the point that the word “heirs” means those ‍​​​‌​​​‌‌‌‌‌​​​‌​‌‌​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌‌‌​‌​​​​‍to whom intestate property would go.

The circumstances here presented are not the same as in Bowers v. Porter. In this will there are distinct devises to different children of the testator, with remainders rеspectively to their “heirs and assigns.” Of these children, some had then no issue; two of his daughters appear to have been then unmarried. It cannot be supposed that by the limitation to their heirs he intended to create а remainder to the children whom they did not have and never might have, rather than to the heirs whom he naturally would exрect them to have at their decease. A different construction cannot well be given to the same wоrds used in the provisions made for his children respectively. The bequests of money to his grandchildren do not tend to show that he considered himself to have provided for them by limiting to them the property which he had given to their mothеr for life with remainder “at her decease to her heirs and their assigns forever.”

Nor can the petitioners take this property as the adopted children and so the heirs of Hannah M. Walcott. Their claim is not under the will of their adopting mother, but under that of Elisha Woodward, her father; and it does not plainly appear to have been the intention of that testator to include the adopted children of any of his own children as beneficiaries under his will. Pub. Sts. c. 148, §§ 7, 8. R. L. c. 154; §§ 7, 8. Wyeth v. Stone, 144 Mass. 441. Blodgett v. Stowell, 189 Mass. 142. Brown v. Wright, 194 Mass. 540, 545. Gammons v. Gammons, 212 Mass. 454.

The rulings made by the judge of the Land Court were correct. Under the terms of the report, the entry must be

Petition dismissed.