Estate of Ashton

Opinion, Mr. Justice Sterrett : After making provision for the payment of debts, etc., the testator, in and by his last will and testament, directed his executor therein named to convert all his estate, real and personal, into money, and gave the proceeds thereof, “together with all other my monies from whatever source,” to his said executor, in trust, to invest one third thereof in real-estate security, and pay the interest and income thereof to his widow during her natufal life; and directed that, immediately after her decease, the said one third should go to his three children, Margaret Ellen, Charles T., and Francis Ashton, subject to the same trusts and limitations as are thereinafter particularly set forth and declared with respect to their respective shares of his estate. He then gave one third of the residue to his said executor, in trust to invest the same as aforesaid, pay the interest and income thereof to his daughter, Margaret Ellen Ashton, during life, etc. Another third of said residue he gave to his said executor, in trust “ to invest the same upon [394] good and sufficient land security, and the interest and income thereof to pay unto my said son Charles Theodore Ashton during all the term of his natural life, and from and immediately after his decease, then in trust to and for the only proper use and behoof of all and every the child or children he may leave, or the lawful issue of any of them who maj^ then be deceased leaving such issue, and in default of such issue, or of any grandchild or grandchildren, the issue of any deceased child of him the said Charles T. Ashton, then in trust to and for the use of the right heirs of him, the said Charles T. Ashton, in equal shares.” In like manner, he gave the remaining third of said residue to his said executor in trust to invest and pay the income to his son Francis Ashton for life, etc. Testator’s daughter married, survived her husband, and died in June, 1873, leaving to survive her two children, William A. Ford and John A. Ford, the appellants. His son Francis died in November, 1886, intestate, unmarried, and without issue. Testator’s widow, Mary Ashton, died in September, 1887; and his remaining son, Charles T. Ashton, who never had any issue, died June 14, 1889, leaving to survive him his widow, Bridget Ashton, the appellee. The fund for distribution is undoubtedly personal property, the proceeds of real estate which the testator directed his executor to sell. In itself, this was an out and out conversion, but in addition to that the real estate was actually sold and converted into money. The claimants on the fund were the two' nephews of Charles T. Ashton, William A. and John A. Ford, and his widow, Bridget Ashton. The former, as sole “heirs” of their uncle, claimed the whole, while his widow claimed one half of the fund. The Orphans’ Court decided in favor of the widow, and hence this appeal. 'The question is, who, under the words, “the right heirs of Charles T. Ashton in equal shares,” are entitled to participate in the distribution, and in what proportion ? Did the testator intend that, in the contingency that has happened, his two grandsons should take the entire fund to the exclusion of his son’s widow, or did he intend that the fund should be distributed among those who, according to the intestate law, would be his son’s distributees, in case the latter died possessed of the fund and intestate, and, if so, did he intend that they should take per. capita or otherwise? [395] In its technical sense, the word “heirs,” employed by the testator in this case, is inapplicable to a disposition of personal property, but in its popular meaning the word has a much wider signification. When used in a gift of personalty, it is very frequently employed to denote those who are entitled to take under the statute of distributions, unless there is something in the context to indicate a contrary intention: Eby’s App., 84 Pa. 241; Morton v. Barrett, 22 Me. 257, 264; Mace v. Cushman, 45 Me. 250, 261; Houghton v. Kendall, 7 Allen 72, 77; Sweet v. Dutton, 109 Mass. 589; Tillman v. Davis, 95 N. Y. 17; Newton’s Trusts, L. R. 4 Eq. 171; In re Philps’ Will, L. R. 7 Eq. 151; Finlason v. Tatlock, L. R. 9 Eq. 258; and other cases cited by the court below. We are satisfied that it was the intention of the testator in this case to use the word “ heirs ” in that sense, and hence the Orphans’ Court rightly construed the clause in question to mean those entitled under the statute of distributions, viz., the testator’s two grandchildren and his son’s widow; but we think there was error in distributing one half to the widow, and one fourth each to the two grandchildren. The gift is to the “ heirs of him, the said Charles T. Ashton, in equal shares.” Having ascertained that the parties entitled to participate in the distribution are the two nephews of Charles T. Ashton and his widow, there appears to be no good reason why they should not take “ in equal shares,” as the will provides. The two nephews of Charles T. Ashton take, not by representation, but directly under their grandfather’s will, as next of kin of their deceased uncle. The testator appears to have contemplated equality among those entitled to participate. That intent, being lawful and clearly expressed, should be carried out. The fund, less the costs of this appeal, should be equally divided among the three parties named in the decree. Decree reversed, and record remitted for correction in accordance with this opinion, costs of this appeal, etc., to be paid out of the fund.