Haley v. City of Boston

Colt, J. This case depends upon the construction to be given to the word “ heirs ” in the thirteenth section of the will of Lucy Bullman. The 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. Millis v. Essex Merrimack Bridge Proprietors, 2 Pick. 243. Bowers v. Porter, 4 Pick. 198. It is, in all cases, a question of intention, and we are of opinion that it was here used in the latter sense. The near relatives of the testatrix are mentioned in the will; and her plain purpose was to provide for these and their issue, by giving to them the income of the devised estates, and, failing such issue, to devote the same to the charitable purposes named. She declares that the property is never to be sold, but the income is to go for the purposes set forth. If the word “ heirs ” is to have its technical meaning, and include all who may succeed to the estate as in case of intestacy, then the provisions of the will in favor of John'W. Haley and for establishing the contemplated charity would have been virtually inoperative, for it could not have been deemed possible that the three nieces should die leaving no one capable of inheriting the estate, however remote. And besides, the clause would contain the absurdity of providing that, in case of their death without heirs, then the income of the property should go to one who in case of his father’s death would he an heir, and whose father would be an heir if living. [580] The construction contended for by the demandants makes the thirteenth clause of the will suicidal, and cannot be supported. Judgment for the tenants.