Whall v. Converse

146 Mass. 345 | Mass. | 1888

Holmes, J.

The general rule is settled, that, in case of an ultimate limitation like that of the fund in question to the testator’s heirs at law, the persons to take are those who answer the description at the time of the testator’s death. Dove v. Torr, 128 Mass. 38, 40. Minot v. Tappan, 122 Mass. 535, 537. Abbott v. Bradstreet, 3 Allen, 587. The reasons for this rule are, that the words cannot be used properly to designate anybody else; that such a mode of ascertaining the beneficiary implies that the testator has exhausted his specific wishes by the previous limitations, and is content thereafter to let the law take its course; and, perhaps, that the law leans toward a construction which vests the interest at the earliest moment. There is nothing to take this case out of the general rule, and it requires no discussion beyond what will be found in the decisions cited.

It follows, without further construction of the words heirs at law, and whether or not any part of the income or principal in any event would fall into the residuum or pass as property undisposed of by the will, that the plaintiff and the testator’s son and daughter took the whole fund among them. The plaintiff has now acquired the son’s and the daughter’s interests; Whipple v. Fairchild, 139 Mass. 262, 265; Welsh v. Woodbury, 144 Mass. 542, 545, and cases cited; and therefore has the equitable title to the whole fund, and the right to terminate the trust. Inches v. Hill, 106 Mass. 575. Underwood v. Boston Five Cents Savings Bank, 141 Mass. 305, 306. Decree for plaintiff.