Dove v. Torr

Gray, C. J. The decision of this case depends upon the true construction of that clause of the will of John Dove by [40] which, after devising the residue of his real estate to his daughters and the survivor of them until death or marriage, he provides as follows: “After the marriage or death of my surviving daughter taking under this item, the estate herein devised shall descend to those persons who may then be entitled to take the same as my heirs.” The word “ then ” is here inserted, not as in Long v. Black-all, 3 Ves. 486, in Sears v. Russell, 8 Gray, 86, and in Thomson v. Luddington, 104 Mass. 193, by way of description of the persons who are to take, but by way of defining the time when they shall come into the enjoyment of that which is devised to them. The word “ surviving ” is not superadded, as in Hulburt v. Emerson, 16 Mass. 241, and in Olney v. Hull, 21 Pick. 311; nor is the devise to those who would have been the testator’s heirs at law if he had died at that time. But the testator declares it to be his will that the estate “shall descend to those persons who may then be entitled to take the same as my heirs.” A devise to “heirs,” or “heirs at law,” is always construed as referring to those who are such at the time of the testator’s death, unless a different intent is plainly manifested by the will. Abbott v. Bradstreet, 3 Allen, 587. Minot v. Tappan, 122 Mass. 535. The application of this rule to the present case is fortified by the use of the word “ descend,” which ordinarily denotes the vesting of the estate by operation of law in the heirs immediately upon the death of the ancestor. Upon a view of the whole clause, we are of opinion that it manifests the intention of the testator to have been, that, after the particular estates which he had specifically given by his will should have failed, the law should take its course, and his estate go to his heirs, as if he had made no further disposition. Bullock v. Downes, 9 H. L. Cas. 1. Mortimer v. Slater, 7 Ch. D. 322; S. C. nom. Mortimore v, Mortimore, 4 App. Cas. 448. Judgment affirmed.