Minot v. Tappan

• Decision Date: 07 May 1877
• Citation: 122 Mass. 535
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Minot & another, trustees, v. Benjamin Tappan & others

122 Mass. 535

William Minot & another, trustees, v. Benjamin Tappan & others

Supreme Court of Massachusetts

May 7, 1877

Argued November 21, 1876

F. V Balch, for the plaintiffs.

W Minot, Jr., for the widow and children of Grenville T Winthrop.

L. M Sargent, for the administrator.

Morton, J. Ames & Soule, JJ., absent.

OPINION

Morton, J.

This bill is brought by the trustees under the will of Thomas L. Winthrop, who died in February, 1841, to obtain the instructions of the court as to the construction of that clause in the will by which one quarter part of the residue was given to trustees for the benefit of George E. Winthrop. This devise was made to the trustees upon the trusts, to pay the net income thereof to the testator's son George E. Winthrop during his life, and if he should die leaving a widow, to such widow during her life, and if said George should die leaving no widow but leaving children, the trust estate was to be conveyed and transferred to such children and the issue of any deceased children. The clause then provides that "in default of any such child, children or issue then living, then in trust to convey and transfer the same to my heirs at law, to hold the same to them their heirs and assigns forever."

George E. Winthrop died in 1875, leaving no issue and never having been married. The questions now presented to us relate to the share of the trust estate which Grenville T. Winthrop, who died in 1852, would have been entitled to if he had survived his brother George, not having alienated his interest. The only parties before the court claiming this interest are the widow and children of said Grenville and his administrator. The principal question is whether, under the last clause of the will above cited, the said Grenville took an interest in the trust estate which vested at the death of the testator.

The general rule is well settled that a bequest or devise to the "heirs" or the "heirs at law" of a testator will be 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. We are unable to find in this will any decisive indications that the testator, in the clause we are considering, intended by his "heirs at law," those who should be such at the death of his son George without issue.

There are no words of contingency, such as "if they shall be living at his death," or "to such of my heirs as shall be then living," which would naturally be used if the intention was to limit the devise or bequest to such of the class as should be then living. It is argued that the fact that the life tenant, George, was one of the testator's heirs at law at the time of...