Boston Safe Deposit & Trust Co. v. Parker

Morton, J. This is a bill in equity by the trustee under the will of one Thomas Hastings for instructions concerning the construction of a clause in said will. The clause, omitting immaterial portions, is as follows: “ Item 7. I give bequeathe and devise to said Thomas Dana and Lorenzo Massatt . . . the second Fourth part of said remainder and residue of my estate, but in trust nevertheless ... to pay over the net income and profits thereof to my daughter Franscena A. Hastings . . . for and during the term of her natural life. ... At the decease of said Franscena A. to distribute and divide said Fourth part among the children of said Franscena or the descendants, of any déceased child . . . living at her death. But if the said Franscena shall die leaving no children nor descendants living at the time of her death, then to diyide and distribute said estate among my heirs at law.” The question is whether the heirs at law are to be ascertained as of the death of the testator or of the life tenant. The appellants contend that the latter is the true construction. The single justice ruled in favor of the other construction, and ordered a decree to be entered accordingly. We think that the ruling and decree were right. Ordinarily the words “ heirs at law ” refer to those who were or will be such at the death of the testator or ancestor and not to some later period. This is the natural import of the words. But where it is evident that the heirs are to be ascertained as of a later period, due effect will be given to the intention thus expressed, if it can be done consistently with the rules of law. There are many ckses in which it has been held that a later period was meant. The question in each case is, primarily, one of intention. And the rules that have been laid down and the cases that have been decided are useful only in so far as they aid the court in ascertaining, and, if possible, in giving effect to, the intention in the particular case before it. In the present case 73 we think that the words have their ordinary meaning, and that the case is one where the testator, having “ exhausted,” as was said in Whall v. Converse, 146 Mass. 345, “ his specific wishes by previous limitations, ... is content thereafter to let the law take its course.” The phrase “ among my heirs at law,” without anything more, is used by the testator repeatedly in the will in regard to the disposition of remainders, and, in view of the well understood meaning of the words, it would seem clear that if the testator had intended that the heirs should be ascertained, in the various cases which would arise, as of some other date than that of his death, he would have said so. The appellants contend that the word “ then ” in the concluding sentence of the clause now before us, and which appears in a similar connection in other places in the will, is used as an adverb of time and that the testator has thereby signified not only the time when the distribution is to be made but also the persons who are to take. But it seems to us plain that the word is used conjunctively and that the sentence should be construed as if it read “ then, in that case or in that event.” | The appellants further contend that the testator, having made ample provision for those who were his heirs at the time of his death, could not have intended that they should also share in the remainders. But it has been expressly held that an heir at law to whom the testator has given a life estate may also take as one of the heirs at law to whom the remainder is given. Abbott v. Bradstreet, 3 Allen, 587. The contention is without force, therefore, so far as it is relied upon to show that the heirs at law are to be ascertained as of the death of the life tenant, and not of the death of the testator. ¡We see nothing in the other objections urged by the appellants. The direction to divide and distribute the remainder amongst the testator’s heirs at law is equivalent to words of present gift if such are needed, and the testator nowhei'e manifests any intention to limit the freest and fullest disposition by his heirs at law of what, if anything, may come to them as their shares of the remainders, or to interfere with any disposition which the law might make in case of their death. Decree affirmed.