Peck v. Carlton

Knowlton, J. The last part of the eighth clause of the will of John Boles, late of Somerville, deceased, is as follows: “ Second, and, as soon after the decease of my said wife as expedient, to sell and dispose of all said rest and residue of my said estate and property, real, personal, or mixed, and to pay over the proceeds of such sale and disposition to my legal heirs, in the same proportion as they would have inherited the same in case I had died the survivor of my said wife, and intestate.” The only question in the case is whether, under this clause, the residue of the estate is to go to those persons who were the legal heirs of the testator at the time of his death, or to those who would have been his heirs had he died immediately after the decease of his wife. The law favors vested rather than contingent remainders, and “ the general rule is that, where a will gives a life interest to one, with a devise over, either for life or in fee, to a definite class of persons, the presumption is that those take who constitute the class at the death of the testator, unless the will shows a different intention.” Dorr v. Lovering, 147 Mass. 530, 534. Merriam v. Simonds, 121 Mass. 198. Whall v. Converse, 146 Mass. 345. Cummings v. Cummings, 146 Mass. 501. Loring v. Carnes, 148 Mass. 223, 225. So strong is the presumption that a reference in a will to the heirs of the testator applies to those who are his heirs at the time of his death, that a different meaning, to be given effect, must plainly appear from other parts of the will. But it is always the duty of the court to discover, if possible, the intention of the testator, and to give it effect. In several recent cases, from general provisions of the will, the 234 court has found that the members of a class among whom property was to be distributed were to be determined as of the time of the happening of an event subsequent to the decease of the testator. Knowlton v. Sanderson, 141 Mass. 323. Fargo v. Miller, 150 Mass. 225. Wood v. Bullard, 151 Mass. 324. In each of the last two cases the question was so fully considered, and so many of the authorities were cited and reviewed, that further discussion is unnecessary. In the present case, the property is to go to the legal heirs of the testator, in the same proportions as they would have inherited it if he had survived until after the death of his wife. On the one hand, it is contended that the words of the will mean that the same persons are to receive the property, and are to receive it in the same proportions, as if the testator had died at that time; on the other hand, that those who are in fact his legal heirs, or their representatives if they are deceased, are to take the property, but that their shares are to be larger than they would be if the widow were to be considered one of the heirs, or, in other words, that this language was chosen merely to show that the widow is not to be included among the “ legal heirs ” who take the residue. We are of opinion that the former is the true construction. The natural interpretation of the language is that the property is to be distributed as if he had died intestate immediately after the death of his wife. Until her death, the distribution of the residue of the estate is postponed, and the property is kept for the purpose of producing income, which is to be applied according to directions particularly given. After that there is no occasion to do otherwise with it than to distribute it among those who would have been entitled to it if he had died intestate at that time. All of his heirs had been provided for, and had received their shares of the income up to that time. It is hardly to be supposed that he would have used this language to signify that his wife was not to be treated as one of his heirs, first, because in the strict sense of the word, as used in the common law, she would not be considered an heir, although she might be under the later statutes and decisions; and, secondly, because he was speaking of a distribution after her death, and in designating the beneficiaries there was nó occasion to refer to her at all. It would have been simple, easy, and natural to 235 describe his other heirs in brief general terms, if that had been his only purpose. Unless the words are given the effect contended for by the children and grandchildren of the testator, or are held to have been used merely to exclude the widow, they are meaningless. We are of opinion that they are not used for the latter purpose, and that it does quite plainly appear that the testator intended to have the residue of his estate distributed precisely as if he had died intestate just after the decease of his wife. Decree of the Probate Court affirmed.