Proctor v. Clark

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtHOLMES, J.
Citation154 Mass. 45,27 N.E. 673
PartiesPROCTOR v. CLARK et al.
Decision Date19 May 1891

154 Mass. 45

27 N.E. 673

CLARK et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 19, 1891


[27 N.E. 673] Willard F. Bowen, [154 Mass. 47] for Lydia A. George.

Marshall, Hamblett & Burke, and Geo. J. Burns, for Irene A. Clark.



This is a bill for the construction of a clause in a Massachusetts will, which clause is the final disposition of a trust of the residue of the testator's estate, "real, personal, and mixed," and is as follows: "3d. Upon the decease of my said wife, then to pay and convey in fee all the trust property, as it then exists, to my said brother, Charles Henry Hancock, if then living; but if he is not then living, then to convey the same in fee to his then heirs at law, whereupon this [27 N.E. 674] trust shall end." The testator's widow is dead. Charles Henry Hancock died [154 Mass. 48] before the testator, and the question is, who takes as his "heirs at law." More specifically the question is whether the whole fund goes to his sister, Irene Clark, or whether his widow, now Lydia A. George, is entitled to any and what share.

The trust fund consisted of both real and personal estate at the time of the testator's death, and is contemplated as including land by the will. This fact, the use of the words "convey in fee," and the use of the similar phrase, "convey the same in fee to his then heirs at law," in the fifth section of the will, which deals only with land, show that "heirs at law" must be construed to mean those who would be entitled to succeed to real estate in case of intestacy. Lincoln v. Perry, 149 Mass. 368, 373, 21 N.E. 671; Fabens v. Fabens, 141 Mass. 395, 399, 5 N.E. 650; Merrill v. Preston, 135 Mass. 451. The facts that the trustee is to convey the property as it then exists, and that he had power to sell and had sold the land, are not sufficient to distinguish this case from the foregoing, and to bring it within White v. Stanfield, 146 Mass. 424, 15 N.E. 919; Codman v. Krell, 152 Mass. 214, 25 N.E. 90; Kendall v. Gleason, 152 Mass. 457, 25 N.E. 838.

Charles Henry Hancock died domiciled in Minnesota, but it has been decided that the words under consideration must be taken to mean those who would be entitled by Massachusetts law to succeed to land in Massachusetts. Lincoln v. Perry, Codman v. Krell, ubi supra.

Again, the words mean those who would have been entitled if Charles Hancock had died at the moment appointed for the conveyance,--that is, at the death of the testator's widow, on January 6, 1890. The gift is to Charles Hancock's "then heirs." The word "then" takes the case out of the general rule illustrated by Dove v. Torr, 128 Mass. 38; Abbott v. Bradstreet, 3 Allen, 587; and Whall v. Converse, 146 Mass. 345, 15 N.E. 660,--and brings it within the exception established by Knowlton v. Sanderson, 141 Mass. 323, 6 N.E. 228; Fargo v. Miller, 150 Mass. 225, 22 N.E. 1003; Wood v. Bullard, 151 Mass. 325, 335, 25 N.E. 67,--for, qualifying "heirs," as it does, it can only mean heirs ascertained as of that time.

It follows that we must look to Pub.St. c. 124, § 3, in order to ascertain whether the widow falls within the words of the will. If her husband had died intestate, and had left no issue living, she would have taken [154 Mass. 49] his real estate in fee to the amount of $5,000. To that extent at least, under our decisions, she is an heir at law. Lavery v. Egan, 143 Mass. 389, 9 N.E. 747; Lincoln v. Perry, 149 Mass. 368, 374, 21 N.E. 671; McMahon v. Gray, 150 Mass. 289, 290, 22 N.E. 923. Novo jure fiunt heredes omnes qui ex senatus consultis aut ex constitutionibus ad hereditatem vocantur. Dig. 533.

The fund is give as one whole to the heirs. Therefore, when it is settled that the widow is an heir, the will gives her a share in the whole fund, and not merely in such part as happened to be land at the testator's death. But we must look to the statutes of descent to determine the proportion which will come to her, as well as to discover whether she is one of the donees. "A devise to heirs designates not only the persons who are to take, but also the manner and proportions in which they take." Cummings v. Cummings, 146 Mass. 501, 507, 16 N.E. 401; Rand v. Sanger, 115 Mass. 124, 128; Holbrook v. Harrington, 16 Gray, 102, 104; Houghton v. Kendall, 7 Allen, 72, 77, 78; Lavery v. Egan, 143 Mass. 389, 393, 9 N.E. 747; Bullock v. Downes, 9 H.L.Cas. 1, 14, 22, 30. It is clear, then, that she takes $5,000. Her right to that amount would have vested at once upon her husband's death, and would not have been divested by her subsequent marriage. See Foster v. Fifield, 20 Pick. 67, 70. But the fund is stated to amount to $21,000, and the question remains whether she is "entitled during her life to one-half of the other real estate" here represented by the rest of the fund,...

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  • Proctor v. Clark
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 19, 1891
    ...154 Mass. 4527 N.E. 673PROCTORv.CLARK et al.Supreme Judicial Court of Massachusetts, Suffolk.May 19, Report from supreme judicial court, Suffolk county; OLIVER WENDELL HOLMES, Jr., Judge. Pub.St.Mass. c. 124, § 3, provides: “A wife shall be entitled to her dower at common law in the lands o......

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