Gardner v. Skinner

Knowlton, C. J. This is a bill for instructions as to the disposition of a trust fund. The plaintiff holds the fund under an indenture which states the trust in these words: “ in trust to invest said sum ... in such property, real or personal, and such securities personal or otherwise as said trustee may deem expedient, and for the benefit of the trust. And in trust to collect, receive and pay over the rents, profits, dividends, interest or income of the trust fund to said Eliza B. Gardner, from time to time, to her own use, upon her separate receipt, and free from the control of any husband during the term of her natural life. And upon her decease, if [she] shall have a husband, then living, in trust to pay over the rents, profits, dividends, interest or income of the fund to such person or persons, to such use or [166] uses as she shall appoint, and declare by any writing in the nature of a will during the term of the natural life of her said husband. And in default of any such appointment, then in trust to pay over said rents, profits, dividends, interest or income to her said husband to his own use during the term of his natural life; and upon his decease, or upon the decease of said Eliza B. Gardner, if she shall leave no husband, in trust for her heirs at law.” Eliza B. Gardner married, and on September 22, 1898, she died leaving her husband Francis Skinner, Sr., and a son Francis Skinner, one of the defendants in this case, surviving her. On November 24, 1905, Francis Skinner, Sr., died. The plaintiff asks the court to instruct him whether, under the terms of the trust, the heirs at law are to be determined as of the time of the death of Eliza B. Skinner, or as of the time of the death of Francis Skinner, Sr., whether Francis Skinner, Sr. is included among the heirs at law, and whether the words “ heirs at law ” are to be interpreted as meaning the persons who would be entitled to take the’ real estate of Eliza B. Skinner, or the persons who would be entitled to take her personal estate. It seems very plain that the heirs of Eliza B. Skinner who are to take in this case are to be determined as of the time of her death. There is nothing in the case to take it out of the' general rule, that a bequest or devise, to the heirs at law of a testator or of a life tenant, will be construed as referring to those who are such at the decease of the testator, or of the life tenant, unless a different intent is plainly manifested in the will. Abbott v. Bradstreet, 3 Allen, 587. Minot v. Tappan, 122 Mass. 535. Gibbens v. Gibbens, 140 Mass. 102. Bosworth v. Stockbridge, 189 Mass. 266. There is nothing to indicate a different intent on the part of the settlor, and the heirs at law are those who were such at the time of the decease of Eliza B. Skinner. The fund was to be invested by the trustee in “ property, real or personal,” as he might deem expedient, and he was to pay over the “ rents, profits, dividends, interest or income,” and at the termination of the trust it was to go to the heirs at law of the first life tenant. It was not to be treated as personal property, to be held and finally paid over as such, but as either real estate or personal property, or as in part one and in part the [167] other. It is immaterial that the trustee has made all his investments in personal property. In determining the meaning of the words “heirs at law” this is to be treated as a mixed fund, which the donor thought as likely to be all real property as all personal property when finally disposed of. It seemed most likely to be in part of one kind and in part of the other. It was not intended that different parts of it should go to different classes of takers. The rule in cases of this kind is that only those who would take the real estate if the ancestor were intestate can be considered heirs at law. Clarice v. Cordis, 4 Allen, 466, 479, 480. Fabens v. Fabens, 141 Mass. 395. Proctor v. Clark, 154 Mass. 45. Olney v. Lovering, 167 Mass. 446. Heard v. Read, 169 Mass. 216, 224. Gray v. Whittemore, 192 Mass. 367. Sweet v. Button, 109 Mass. 589, relied on by the executors of the will of Francis Skinner, Sr., was questioned in Merrill v. Preston, 135 Mass. 451, and held to rest on the view taken by the court of the peculiar facts of the case. In White v. Stanfield, 146 Mass. 424, Codman v. Krell, 152 Mass. 214, and Kendall v. Gleason, 152 Mass. 457, the fund was intended to be held and finally disposed of as personal property, and it therefore came under a different rule. Eliza B. Skinner left a son, who was her only heir at law under the statutes in force at the time of her death ; for her husband could take no share of her real estate. Pub. Sts. c. 124, § 1. It follows that the plaintiff should pay over the proceeds of the trust property to the defendant Francis Skinner. So ordered.