Rand v. Sanger

• Decision Date: 28 April 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Edward S. Rand & another, administrators, v. Caroline Sanger & others

115 Mass. 124

Edward S. Rand & another, administrators, v. Caroline Sanger & others

Supreme Court of Massachusetts

April 28, 1874

[Syllabus Material] [Syllabus Material]

Suffolk. Bill in equity by Edward S. Rand and Warren Sanger administrators with the will annexed of Sarah Louise Hubbell, praying for instructions as to the distribution of the rest and residue of the estate of the said testatrix; and that the defendants might be decreed to interplead. The case was reserved for the consideration of the full court, by Ames, J., upon the bill, answers and report. From these it appeared that:

The testatrix by her will, after sundry legacies and bequests, by the forty-second article thereof disposed of all the rest and residue of her estate in the words following: "All the rest and residue of my estate, real, personal or mixed, of which I shall die seised and possessed, or to which I shall be entitled at the time of my decease, I give, devise and bequeath to be equally divided among those persons who shall be my legal heirs at the time of my decease, excepting my son John H. Hubbell; and this exception is made only for the reason that at my decease he will come into the possession of his father's estate, which will be ample for all his wants.

"And in the distribution of the said residue among my heirs, I desire and direct that the children of my sisters Mrs. Anne Smith and Mrs. Caroline Sanger shall share the same equally; that is, that it be divided among them numerically or per capita, and not per stirpes, and that the offspring of any deceased child of theirs only take by right of representation, or the share that the parent of such offspring would take if living."

The testatrix left at her decease as her heirs at law her only surviving sister, Caroline Sanger; Cornelia Baird and Gerrit H. Smith, the children of her deceased sister Anne Smith, and John H. Hubbell, (called in the said will her son, meaning her stepson,) the only child of her deceased sister Jane Hubbell, who being expressly excluded from any share in the said rest and residue, was not made a party to this suit. At the decease of the testatrix there were living seven children of Caroline Sanger; namely, Anna L. Paddock, Mary J. Hearding, Mary W. Swinscoe, Caroline Campbell, Joseph P. Sanger, Henry P. Sanger and Fanny Davis. No change in the legal heirs or next of kin of the deceased took place between the date of the will, November 2, 1872, and her decease, September 10, 1873.

Caroline Sanger submitted her rights under the will to the decision of the court. Cornelia Baird and Gerrit H. Smith contended in their answers that the intention of the testatrix was to give the residue to those persons who should turn out to be her legal heirs at her decease by the statute of distributions, excluding her nephew John; and that they were the said Caroline Sanger and the said Caroline Baird and Gerrit H. Smith, and that the residue should be divided into three equal parts between the said Caroline Sanger, Cornelia Baird and Gerrit H. Smith; but that if the division was not to be made into three equal parts, to the three persons who were her legal heirs, (excluding John,) then it was to be made between them in the proportions provided by the statute of distributions; namely, into two equal parts; one to the said Caroline Sanger, the other to the said Cornelia Baird and Gerrit H. Smith.

Anna L. Paddock and others, children of Caroline Sanger, contended that the testatrix by the forty-second article of her said will, intended that the residue of her estate therein disposed of should be equally divided between the children of her surviving sister Caroline Sanger, and of her deceased sister Anne Smith, each being entitled to and taking one ninth part.

R. H. Dana, Jr., for Gerrit H. Smith and Cornelia Baird, was stopped by the court.

H. W Paine, for the children of Mrs. Sanger. If the words "legal heirs" are to be taken in their strictly legal sense, it is manifest that the two clauses of the forty-second article are repugnant. The children of Mrs. Sanger were not the legal heirs of the testatrix at the time of her decease. They were not "entitled by descent and right of blood to her lands, tenements and hereditaments," as their mother was then living; but they are clearly distributees (to the exclusion of their mother) under the latter clause. It is difficult, if not impossible, to give effect to all the language of this article of the will, unless we suppose the testatrix to use the phrase "legal heirs" in its popular sense as synonymous with legatees. For unless she...