Dodge v. Slate

• Decision Date: 10 July 1945
• Docket Number: No. 1705.,1705.
• Citation: 43 A.2d 242
• Parties: DODGE v. SLATE et al.
• Court: Rhode Island Supreme Court

43 A.2d 242

DODGE

v.SLATE et al.

No. 1705.

Supreme Court of Rhode Island.

July 10, 1945.

Case Certified from Superior Court, Providence and Bristol Counties.

Bill in equity by William Earl Dodge, administrator cum testamento annexo, against Gladys D. Slate and others, for the construction of the will of Winfield S. Dodge, Jr. The case was certified to the Supreme Court for determination on being ready for hearing for final decree.

Decree in accordance with opinion.

Frank F. Mason, of Providence, for complainant.

Everard Appleton, of Providence, for Gladys D. Claire, and Albion Slate.

Sisson, Fletcher, Worrell & Hodge and Paul H. Hodge, all of Providence, for Barbara Frances Conlong and Della Gladys Hodge.

Sayles Gorham, of Providence, guardian ad litem of Merrill E. Slate.

CAPOTOSTO, Justice.

This is a bill in equity for the construction of the will of Winfield S. Dodge, Jr., late of the town of New Shoreham, deceased. Being ready for hearing for final decree in the superior court, it was certified to this court for determination in accordance with the provisions of General Laws 1938, ch. 545, § 7. The respondents are all the persons who have a legal interest in the determination of the questions raised in this cause; and all of them, except Merrill E. Slate, a minor who is represented by a guardian ad litem, are of full age.

The particular clause of the will for construction reads as follows: ‘First: After the payment of my just debts and funeral expenses, I give, devise and bequeath all my property both real and personal, which I now possess, or will acquire through purchase or inheritance, wheresoever the same may be located or situated, to my heirs now living, share and share alike. In the event that any of my heirs now living shall not survive me, then and in that event the share or shares of those deceased shall be distributed equally among the heirs surviving me.’ This clause, which is not affected by any other provision in the will, presents two questions for determination: First, whom did the testator intend to designate as his beneficiaries by the word ‘heirs'? Second, what share of the estate is each such person entitled to receive?

No testimony was taken in the superior court. It appears from the bill of complaint and the answers thereto that the will was executed January 2, 1940; that the testator died April 2, 1942; and that the will was duly admitted to probate on June 1, 1942, at which time the complainant was appointed administrator c.t.a. The testator's father and mother, who were living when the will was executed, predeceased him. The testator left surviving him (1) a sister, Gladys D. Slate, and her three children, Albion D. Slate, Claire Slate and Merrill E. Slate; and (2) Barbara Frances Conlong and Della Gladys Hodge, children of testator's sister, Hazel May Jones, who died May 18, 1923.

All of the persons above mentioned as having survived the testator are respondents in this cause. Albion D. Slate and Claire Slate admit in their answers that they are not heirs at law of the testator because their mother, Gladys D. Slate, the testator's sister, is living and a respondent here. The guardian ad litem for Merrill E. Slate, the minor child of Gladys D. Slate, suggests the same conclusion in submitting the interest of his ward to the protection of the court. It is clear to use that Merrill E. Slate stands in no better position than the other two children of Gladys D. Slate and that none of them was an heir at law of the testator.

The real difference between the parties here is not so much as to the identity of the persons that the testator intended to designate by the word ‘heirs' in the will, but more as to the respective shares that such persons should receive in the distribution of the estate. Gladys D. Slate contends that she is entitled to one half of the estate and that Barbara Frances Conlong and Della Gladvs Hodge, the two daughters of her deceased sister, are entitled to the other half in equal shares. On the other hand, Barbara Frances Conlong and Della Gladys Hodge contend that they are entitled to an equal share with Gladys D. Slate, or, in other words, that the estate should be distributed in three equal shares.

The following two rules of testamentary construction are well established with us: First, the primary rule is to ascertain the testator's intention as disclosed by the language of the will and then to give effect thereto, unless it be contrary to some established rule of law. Washington Trust Co. v. Arnold, 69 R.I. 121, 31 A.2d 420. Second, where the testator uses familiar legal words, it must be presumed, in the absence of a clearly indicated contrary intent in the will, that he used them in their ordinary legal sense. Starrett v. Botsford, 64 R.I. 1, 6, 9 A.2d 871.

It is clear that the testator intended to leave his entire estate, in case neither of his parents survived him, to a class of persons whom he described as ‘the heirs surviving me’. In the absence of language which clearly evidences a contrary intention, the word ‘heirs' has been construed by this court to mean those living persons on whom the local law of descent casts the inheritance immediately upon the ancestor's death. In such a case, the meaning of the word ‘heirs' is fixed by law and it is presumed that the testator used such word in its ordinary legal sense. Champagne v. Fortin, 69 R.I. 10, 20, 30 A.2d 838; Skinner v. Brunsen, 69 R.I. 159, 32 A.2d 263, 147 A.L.R. 491; Starrett v. Botsford, supra; Goodgeon v. Stuart, 50 R.I. 6, 9, 144 A. 670. There is no language in the will before us showing that this testator used the word ‘heirs' in any other sense. Therefore, the words ‘heirs surviving me’ can only refer to and include all the persons living at his death who would then, if he died intestate, be entitled to inherit his estate under our statutes of descent and distribution. Todd v. St. Mary's Church, 45 R.I. 282, 287, 120 A. 577.

The descent of testator's estate as to both real and personal property is the same in the circumstances of this cause. G.L.1938, ch. 567, §§ 1, 9. If he had died at or about the time that the will was executed, his heirs then living were his father and his mother. But they both predeceased him, so that at the time of testator's death the heirs surviving him were his sister, Gladys D. Slate, and Barbara Frances Conlong and Della Gladys Hodge, children of his deceased sister, Hazel May Jones.

The next question for determination is as to the share of the estate that each of these...