Peabody v. Cook

• Citation: 87 N.E. 466,201 Mass. 218
• Parties: PEABODY v. COOK.
• Decision Date: 26 February 1909
• Court: United States State Supreme Judicial Court of Massachusetts

201 Mass. 218

87 N.E. 466

PEABODY v. COOK.

Supreme Judicial Court of Massachusetts, Norfolk.

February 26, 1909

COUNSEL

John T. Wheelwright, for appellant.

Edmund K. Arnold, for respondent F. W. Russell and others.

OPINION

RUGG J.

This is a petition by the trustee under the will of Isaac Cook for leave to convert certain real and personal estate into cash and distribute the proceeds to such persons as may be entitled thereto under the provisions of the will. The trustees were directed, by the seventh and eighth clauses of the will, to hold certain real and personal property upon the trust, first, to pay the income thereof to William W. Cook, a grandson of the testator, during his life, and to his wife Frances A., if she survived him during her life. The trust was to terminate upon the decease of the survivor of these two, and the trustees were directed as to the property held under clause 7 to thereupon convey the estate 'to and among the right heirs at law of said William W. Cook agreeably to the statutes of Massachusetts regulating the descent of intestate estates, the issue of any deceased child taking its parent's share.' As to the property held under clause 8, they were directed to distribute the property 'to and among the right heirs at law of the said William W. Cook agreeably to the statutes of Massachusetts regulating the descent and distribution of intestate estates, the issue of any deceased child taking its parent's share.' William W. Cook and Frances A. Cook both survived the testator, and subsequently Frances A. Cook deceased, having had five children by William W. Cook, three of whom are now living, the others having died without issue. Thereafter William W. Cook married as his second wife the appellant, Harriet F. Cook, who has borne by him two children, both now living and who has survived him. William W. Cook died within a year prior to the filing of this petition.

The question presented is whether the second wife, Harriet F Cook, shares under the provisions of the will of Isaac Cook, or whether the property is to be divided wholly among the children of William W. Cook. If the word 'right' had been omitted from the clauses above quoted governing the final distribution of the estate, there would be no question but that the second wife would be entitled to share in the estate. Rev. Laws, c. 140, § 3, cl. 3, creates a surviving wife a statutory heir of a deceased husband, who leaves issue. It is true that by Rev. Laws, c. 132, § 1, the wife is given the right to waive her inheritance and claim her dower at common law, but we construe this statute to mean that the wife stands upon the same footing respecting the interest in the real estate of a deceased husband, where the deceased leaves a widow and issue, as she does where the deceased leaves no issue, in which event she is given at least five thousand dollars and one half the remaining real and personal estate. It has been repeatedly held that in the latter event the wife is a statutory heir. She is included among those who take real estate in fee in case of intestacy, which is the familiar definition of heir at law. Proctor v. Clark, 154 Mass. 45, 27 N.E. 673, 12 L. R. A. 721; Smith, Petitioner, 156 Mass. 408, 31 N.E. 387; International Trust Co. v. Williams, 183 Mass. 173, 66 N.E. 798; Holmes v. Holmes, 194 Mass. 552, 559, 80 N.E. 614; Gray v. Whittemore, 192 Mass. 367, 381, 78 N.E. 422. The only doubt arises from the presence of the word 'right' before 'heirs' in these two clauses of the will. These two words have been adverted to in Brown v. Wright, 194 Mass. 540, 545, 80 N.E. 612, and in Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 81 N.E. 654, but their meaning was not defined in either of these cases. The phrase 'right heirs' has been before other courts in several instances, and has generally been held to mean the same as heirs at law. Guerard v. Guerard, 73 Ga. 506, 510; Ballentine v. Wood, 42 N. J. Eq. 552, 9 A. 582; Brown v. Wadsworth, 168 N.Y. 225, 61 N.E. 250; Gordon v. Small, 53 Md. 550, 560; Sladen v. Sladen, 3 J. & H. 369; In re Ferguson, 24 Ont. App. 61. See 1 Washburn on Real Property (6th Ed.) § 150. In several English cases it has been said that the words 'right heirs' mean the heirs at common law. Garland v. Beverly, 9 Ch. Div. 213, 220; De Beauvoir v. De Beauvoir, 3 House of Lords Cases, 524, 551; Young v. Gibbons, [1902] 1 Ch. 336, 647. There is ground for argument that, applying the principle of the English cases to the present statutory provisions in Massachusetts in the light of the history of our statutes touching the...