Swazey v. Jaques

• Decision Date: 26 February 1887
• Citation: 10 N.E. 758,144 Mass. 135
• Parties: SWAZEY v. JAQUES and others.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 135

10 N.E. 758

SWAZEY v. JAQUES and others.

Supreme Judicial Court of Massachusetts, Essex.

February 26, 1887

COUNSEL

Horace I. Bartlett, for appellant.

The probate court had jurisdiction of this petition. But in cases of account it has frequently construed wills in determining questions relating to past action. New England Trust Co. v. Eaton, 140 Mass. 534, 4 N.E. 69 and cases cited. The probate court has long had jurisdiction in equity of all matters relating to trusts created by will. Rev.St.Mass. c. 69; Gen.St.Mass. c. 100; Pub.St.Mass. c. 141; New England Trust Co. v. Eaton, ubi supra. Under the statutes above cited the court could direct to whom funds held in trust should be distributed. Larrabee v. Tucker, 116 Mass. 562. Acts Mass.1873, c. 224, gave the probate court concurrent jurisdiction with this court to determine "all matters arising under wills in the same manner as is now provided by law in relation to trusts created by will." Acts Mass.1879, c. 183; Pub.St. c. 127, § 34. In cases similar to this at bar, begun and coming before this court in the same manner, the jurisdiction has not been questioned. Wright v. White, 136 Mass. 471; Huntress v. Place, 137 Mass. 409. The right of appeal is full and complete. Pub.St.Mass. c. 156, § 5; St.1879, c. 183. The appellant only is included in next of kin. In common parlance, the words "next of kin" and "nearest of blood" are synonymous. The legal meaning of the words, simpliciter, is the same, (Rap. & L.Law Dict.; Bouv.Law Dict.; Burrill, Law Dict.; Abb.Law Dict Sweet Law Dict,;) and, when used simpliciter in a will, the phrase will not include those who take by representation under the statute,--2 Jarm. Wills, (3d Amer.Ed.) 28; 2 Redf 75; Perry, Trusts, § 257; Wig. (2d Amer.Ed.) 319; Hawk. (2d Amer.Ed.) 97; Garrick v. Camden, 14 Ves. 373; Smith v. Camprell, Coop. 275; Brandon v. Brandon, 3 Swanst. 312; Elmsley v. Young, 2 Mylne & K. 780, (1835;) Withy v. Mangles, 10 Clark & F. 215, (1843;) Halton v. Foster, 3 Ch.App. 505, (1868;) Harris v. Newton, 25 Wkly.Rep. 228, (1877;) Redmond v. Burroughs, 63 N.C. 242; Jones v. Oliver, 3 Ired.Eq. 369; Davenport v. Hassel, Bush, Eq. 29; Wright v. Methodist Episcopal Church, 1 Hoff.Ch. 213; Wimbles v. Pitcher, 12 Ves. 433. No difference as to the construction of the words whether will or deed. Rook v. Attorney General, 31 Beav. 313. There is an important difference between next of kin and next of kin according to the statute of distributions. The former points only to law of consanguinity; the latter to the law of succession ab intestato. Williams, Ex'rs, (6th Amer.Ed.) 491; 2 Bl.Comm. 496. Administration is granted to the next of kin as follows: (1) To children; (2) to parents; (3) to brothers and sisters; (4) to grandparents; (5) nephews and nieces. Smith, Prob.Law, (Ed.1884,) p. 84. The intention, as drawn from the will, excludes the appellees. Appellant's costs should be allowed out of the estate.

David L. Withington and Nathaniel N. Jones, for John T. and Edmund Jaques, appellees.

The probate court had jurisdiction of this petition. Pub.St.Mass. (St.1879, c. 183,) c. 127, § 34; New England Trust Co. v. Eaton, 140 Mass. 533; 4 N.E. 69. It is also a court of record. Pub.St.Mass. c. 156, §§ 1, 2; Pierce v. Prescott, 128 Mass. 140. The provisions for appeal to this court are ample and complete. Pub.St. c. 156, §§ 5-8, 11; St.Mass.1879, c. 183; Pub.St. c. 156, §§ 23, 45. The jurisdiction granted to probate courts concurrently with the supreme court, over trusts and trustees, by chapter 141, Pub.St. § 27, is an equitable jurisdiction. Attorney General v. Barbour, 121 Mass. 573; Bowditch v. Banuelos, 1 Gray, 220; Lynes v. Hayden, 119 Mass. 482; Luchterhand v. Sears, 108 Mass. 552. See, also, Pub.St.Mass. c. 143, §§ 5-7; Id. c. 140, § 13; Id. c. 134, § 8; Id. c. 142, § 4, (St.1863, c. 230.) These considerations seem conclusively to show the clear intent of the act to give the probate court jurisdiction, with the purpose of the legislature indicated in other acts, and with the powers and character of the court.

The appellees contend that in this commonwealth the words "next of kin" used in a will, uncontrolled by other words, mean "next of kin according to the statute of distributions." Pub.St.Mass. c. 136, §§ 20, 26-28; Id. c. 143,§§ 12, 13, 20, 23. See, also, "Kindred," Id. c. 135, § 3; Id. c. 25, § 2; Parker v. Kuckens, 7 Allen, 509. It is well settled that the word "heirs," whenever it denotes succession or substitution, "should be construed to mean the person who would legally take property according to its nature or quality, and that the heirs at law would take the real estate, and the next of kin, or persons entitled to inherit personalty, would take the personal estate," (Fabens v. Fabens, 141 Mass. 399, 5 N.E. 650;) and where it denotes a substantive gift, whether it is held to mean heirs at law strictly, or next of kin, it means those who are heirs or next of kin under the statute. ( Minot v. Harris, 132 Mass. 528; Merrill v. Preston, 135 Mass. 451; Wingfield v. Wingfield, 9 Ch.Div. 658; 2 Jarm. Wills, 78, note 13, and cases; Keay v. Boulton, 25 Ch.Div. 212.) "Relations" is construed to mean statutory next of kin. Esty v. Clark, 101 Mass. 38; Rayner v. Mowbray, 3 Brown, Ch. 234. Haraden v. Larrabee, 113 Mass. 430, only decided that next of kin is limited to blood relations, whether qualified by reference to the statute or not. Tillinghast v. Cook, 9 Metc. 148; Daggett v. Slack, 8 Metc. 453; Rand v. Sanger, 115 Mass. 128; Childs v. Russell, 11 Metc. 16. Now, turning to the English cases, it is true that the law is settled the other way since Withy v. Mangles, 10 Clark & F. 215, (which HOAR, J., discusses very sharply and unfavorably in Houghton v. Kendall, 7 Allen, 75;) Sir G. JESSELL, M.R., in Re Thompson's Trusts, 9 Ch.Div. 607; Lowndes v. Stone, 4 Ves. 649. While next of kin, simpliciter, is understood to mean nearest of kin, Lord CAMPBELL says: "It is impossible to deny that the law has by some bad luck got into a strange state." Withy v. Mangles, ubi supra; Harris v. Newton, 25 Wkly.Rep. 228. In this will it is clear that statutory next of kin are here intended. Pub.St. c. 127, § 23. We ask that costs should be allowed, taxed as between solicitor and client, to be paid out of the estate.

OPINION

FIELD J.

This is a petition by an executor for the construction of a will, and it was filed in the probate court, and a decree there entered, from which an appeal has been taken to this court, where the cause has been heard by a single justice, and reported to the full court. In proceedings in the probate court upon the allowance of an account of an executor, the court is necessarily confined to the determination of only those questions which are involved in the allowance or disallowance of the account, and cannot give directions for the future action of the executor. Lincoln v. Aldrich, 141 Mass. 342, 5 N.E. 517; New England Trust Co. v. Eaton, 140 Mass. 534, 4 N.E. 69.

A bill in equity was the proper proceeding for obtaining the instructions of the court upon the construction to be given to a will. Jurisdiction in equity to hear and determine all matters relating to trusts created by will was long ago conferred upon the probate court. Rev.St. c. 69, § 12. See Report Com'rs on Rev.St. c. 69, notes, § 12; Gen.St. c. 100, § 22; Pub.St. c. 141, § 27.

By St.1873, c. 224, § 3, "probate courts in the several counties may, concurrently with the supreme judicial court, hear and determine all matters arising under wills, in the same manner as is now provided by law in relation to trusts created by will;" and by St.1879, c. 183, § 1, "the supreme judicial court and the probate courts in the several counties may, on petition, hear and determine all matters and questions arising under wills: provided, however, that any party aggrieved by the decision of the probate court thereon may appeal therefrom to the supreme judicial court as now provided by law." See Pub.St. c. 127, § 34; Id. c. 156, §§ 5, 6, 11. The proceedings in the present case were authorized by and are in accordance with St.1879, c. 183, § 1, and Pub.St. c. 127, § 34. Huntress v. Place, 137 Mass. 409; Wright v. White, 136 Mass. 471.

By the tenth article of the will the testatrix gave pecuniary legacies to certain persons, and provided that, if "any of them shall die before my decease, I give the sums which I have given to them respectively, respectively to those persons living at the time of my decease who shall then be next of kin, respectively, of those of them whom I may survive." Matilda Jaques, one of these legatees, died in the life-time of the testatrix, leaving as her nearest relations a brother, Richard T. Jaques, and three nephews, sons of another brother, all of whom survived the testatrix, and are now living. The question is whether the words "next of kin" in the will mean nearest blood relations, or include all those relations who would take under the statute of distribution.

In England this question was settled by Withy v Mangles, 10 Clark & F. 215; Harris v. Newton, 25 Wkly.Rep. 228; Halton v. Foster, 3 Ch.App. 505. The case of Withy v. Mangles has been cited by this court in Houghton v. Kendall, 7 Allen, 72; Haraden v. Larrabee, 113 Mass. 430. There are comments upon the case in Houghton v. Kendall, but the decision in Houghton v. Kendall is in accordance with late English decisions by courts inferior to the house of lords, and these decisions must be held not to be in conflict with Withy v. Mangles. In Houghton v. Kendall a testator bequeathed to his daughter Sally the income of $2,000, which was to remain in the hands of his executors, and provided that at her decease the sum remaining in their hands should be paid "over to the...