Tyler v. City Bank Farmers Trust Co.

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: LUMMUS
• Citation: Tyler v. City Bank Farmers Trust Co., 314 Mass. 528, 50 N.E.2d 778 (Mass. 1943)
• Decision Date: 14 September 1943
• Parties: TYLER v. CITY BANK FARMERS TRUST CO. et al.

314 Mass. 528

50 N.E.2d 778

TYLER

v.CITY BANK FARMERS TRUST CO. et al.

Supreme Judicial Court of Massachusetts, Essex.

Sept. 14, 1943.

Proceeding on petition of Roger B. Tyler, trustee, for instructions with respect to distribution of personalty held by petitioner as trustee under the will of John N. Mott, deceased, opposed by the City Bank Farmers Trust Company, executor, and others. From a decree of probate court instructing trustee, an appeal was taken.

Reversed with directions.Appeal from Probate Court, Essex County; J. A. Costello, Judge.

Before FIELD, C. J., and DONAHUE, LUMMUS, QUA, DOLAN, COX, and RONAN, Jj.

L. P. Jordan, Jr., of Boston, stated the case.

M. R. Brownell and C. H. Whittier, both of New Bedford, for Knevals and others.

R. H. Wiswall, of Salem, for City Bank Farmers Trust Co., executor.

LUMMUS, Justice.

John N. Mott, late of Salem, died in 1873, leaving a widow, Harriett Elizabeth Mott, and one child, Mary H. Mott, afterwards by marriage Mary H. Mitchell. The widow died before the daughter. The daughter died without issue on February 22, 1932.

The petitioner asks instructions with respect to the distribution of personalty which he holds as trustee under Item Sixteenth of the will of John N. Mott, which reads as follows: ‘The rest and residue of my estate real and personal I give and advise to my wife and my friend Benjamin H. Silsbee to hold on this trust, they shall pay over the net rent and income therefrom to my wife during her life, and at her decease the same shall be held in trust for my daughter and the rent and income paid over to her during her life, and if at any time the income shall be insufficient for her support my trustees for the time being are authorized to pay over to her so much of the principal for her comfortable support as they may judge best and at the decease of my daughter the estate then held in trust shall be paid over to her issue in the same proportions as if my daughter had died intestate possessed of the same and in default of issue to my heirs at law. * * *’ (Italics ours.) The question comes on the meaning of those italicized words.

The word ‘heirs' is the correlative of ‘ancestor.’ Heirs are those who under the law take by descent the real estate of an ancestor. The ancestor is the one from whom real estate descends by law to heirs. Parents may be the heirs of their child. G.L.(Ter.Ed.) c. 190, § 3(2). In a will a gift to the heirs of a person refers to those entitled to his real estate by descent, where the property given is real estate or consists of both realty and personalty. Gray v. Whittemore, 192 Mass. 367, 380, 78 N.E. 422, 10 L.R.A., N.S., 1143, 116 Am.St.Rep. 246, and cases cited; Holmes v. Holmes, 194 Mass. 552, 558, 80 N.E. 614;Gardner v. Skinner, 195 Mass. 164, 167, 80 N.E. 825;Peabody v. Cook, 201 Mass. 218, 222, 87 N.E. 466,16 Ann.Cas. 296;Lawrence v. Crane, 158 Mass. 392, 393, 33 N.E. 605. But where the property given is wholly personalty, the word ‘heirs' in such a gift is construed to mean those entitled to have personalty left by that person distributed to them by law. 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. 838,9 L.R.A. 509;Bullard v. Shirley, 153 Mass. 559, 561, 27 N.E. 766,12 L.R.A. 110;Lawrence v. Crane, 158 Mass. 392, 393, 33 N.E. 605;Gray v. Whittemore, 192 Mass. 367, 380, 381, 78 N.E. 422, 10 L.R.A.,N.S., 1143, 116 Am.St.Rep. 246. In recent cases, however, the rule has been laid down broadly that a gift by will to the heirs of a person is a gift to those entitled to inherit his real estate (Sherburne v. Howland, 239 Mass. 439, 442, 132 N.E. 188;Seavey v. O’Brien, 307 Mass. 33, 35, 36, 29 N.E.2d 196), and this has been said even in a case which involved personalty only, although it did not appear in that case that there was any difference between the heirs and the distributees. Yerxa v. Youngman, 241 Mass. 251, 254, 135 N.E. 117. In the present case the trust fund to be distributed, though now consisting wholly of personalty, constituted the residue of the estate, and it can be inferred from other parts of the will that the trust included real estate. Under all the authorities the word ‘heirs' meant those entitled by law to inherit real estate.

It is settled that a gift to the heirs of a person determines not only the persons who are to take but also the manner and proportions in which they take, the statute being in effect read into the will. Daggett v. Slack, 8 Metc. 450;Tillinghast v. Cook, 9 Metc. 143, 148;Holbrook v. Harrington, 16 Gray, 102, 104;Proctor v. Clark, 154 Mass. 45, 49, 27 N.E. 673,12 L.R.A. 721;Allen v. Boardman, 193 Mass. 284, 286, 79 N.E. 260,118 Am.St.Rep. 497;Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 41, 81 N.E. 654;Proctor v. Lacy, 263 Mass. 1, 8, 9, 160 N.E. 441;Wheeler v. Moulton, 290 Mass. 567, 195 N.E. 777;Seavey v. O'Brien, 307 Mass. 33, 35, 36, 29 N.E.2d 196, and cases cited; Boston Safe Deposit & Trust Co. v. Doolan, 307 Mass. 233, 239, 29 N.E.2d 844.

Under the law as it existed when the testator died in 1873, if he had died intestate his real estate would have descended to his daughter as his only heir, while his personal estate would have been distributed one third to his widow and two thirds to his daughter. Gen.St. 1860, c. 91, § 1; c. 94, § 16. The only question argued is whether the heirs of the testator are to be determined as of the time of his death, or as of the time when the surviving life tenant died in 1932. Sherburne v. Howland, 239 Mass. 439, 442, 132 N.E. 188. If the former is the true construction, his daughter Mary was the only heir and the fund goes to her estate. If the latter is the true construction, the heirs are the descendants of brothers and sisters of the testator. G.L.(Ter.Ed.) c. 190, § 3(5). The probate judge entered a decree in their favor.

In the accurate use of language, only those entitled to inherit at the death of another can be called his heirs. Accordingly, unless a contrary intention appears, a gift in a will to the heirs of a person, whether he be the testator or a life tenant or another, will be construed as a gift to such heirs determined as of the time of death of that person. Upham v. Parker, 220 Mass. 454, 457, 107 N.E. 994;Bailey v. Smith, 222 Mass. 600, 602, 603, 111 N.E. 684;Sherburne v. Howland, 239 Mass. 439, 441, 442, 132 N.E. 188;Walcott v. Robinson, 214 Mass. 172, 174, 100 N.E. 1109. See also Robertson v. Robertson, 313 Mass. 520, 528, 529 (‘issue’). The reasons for this rule, apart from the natural meaning of the word, are stated in Whall v. Converse, 146 Mass. 345, 15 N.E. 660;Jewett v. Jewett, 200 Mass. 310, 316, 86 N.E. 308, and Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 583, 177 N.E. 621. Later cases applying this general rule are Calder v. Bryant, 282 Mass. 231, 184 N.E. 440, 94 A.L.R. 18,Old Colony Trust Co. v. Clarke, 291 Mass. 17, 195 N.E. 758, and Gorey v. Guarente, 303 Mass. 569, 22 N.E.2d 99.

This general rule has been held to apply although the life tenant, on whose death the property was to pass to the heirs of the testator, was himself one of those heirs (Welch v. Brimmer, 169 Mass. 204, 211, 47 N.E. 699;Cushman v. Arnold, 185 Mass. 165, 169, 70 N.E. 43;Smith v. Smith, 186 Mass. 138, 139, 71 N.E. 314;Gray v. Whittemore, 192 Mass. 367, 381, 78 N.E. 422, 10 L.R.A., N.S., 1143, 116 Am.St.Rep. 246;Jewett v. Jewett, 200 Mass. 310, 317, 86 N.E. 308;Blume v. Kimball, 222 Mass. 412, 110 N.E. 1036;Brown v. Spring, 241 Mass. 565, 568, 135 N.E. 701;Boston Safe Deposit & Trust Co. v. Stratton, 259 Mass. 465, 477, 156 N.E. 885;Old Colony Trust Co. v. Clarke, 291 Mass. 17, 21, 195 N.E. 758;Allison v. Allison's Executors, 101 Va. 537, 44 S.E. 904,63 L.R.A. 920), or even the sole heir (Gilman v. Congregational Home Missionary Society, 276 Mass. 580, 584, 177 N.E. 621;Old Colony Trust Co. v. Clarke, 291 Mass. 17, 21, 195 N.E. 758; Bird v. Luckie, 8 Hare 301; In re Wilson, [1907] 2 Ch. 572; Himmel v. Himmel, 294 Ill. 557, 128 N.E. 641, 13 A.L.R. 608;Matter of Bump's Will, 234 N.Y. 60, 136 N.E. 295;Evans v. Rankin, 329 Mo. 411, 44 S.W.2d 644), so that the gift over could never come into his actual possession. But in the earlier cases doubt is expressed as to this where the life tenant is the sole heir (Fargo v. Miller, 150 Mass. 225, 229, 230, 22 N.E. 1003,5 L.R.A. 690;Welch v. Brimmer, 169 Mass. 204, 211, 212, 47 N.E. 699; Heard v. Read, 169 Mass. 216, 223, 47 N.E. 778;Smith v. Smith, 186 Mass. 138, 139, 71 N.E. 314), and even now that fact, when accompanied by other circumstances, may have a bearing against the application of the general rule. Welch v. Howard, 227 Mass. 242, 246, 116 N.E. 492;Brown v. Wright, 194 Mass. 540, 544, 80 N.E. 612.

This general rule applies even though the gift is in the form of a direction to pay over and distribute at a future time, without any words of present gift (Welch v. Blanchard, 208 Mass. 523, 527, 94 N.E. 811, 33 L.R.A., N.S., 1; Upham v. Parker, 220 Mass. 454, 459, 107 N.E. 994;Brown v. Spring, 241 Mass. 565, 568, 135 N.E. 701;Bamford v. Hathaway, 306 Mass. 160, 161, 162, 27 N.E.2d 711), such a direction being ‘equivalent to words of present gift’ (Boston Safe Deposit & Trust Co. v. Parker, 197 Mass. 70, 73, 83 N.E. 307, 308), although that fact may be weighed with other indications against the application of the general rule. Eager v. Whitney, 163 Mass. 463, 40 N.E. 1046;Leonard v. Haworth, 171 Mass. 496, 500, 51 N.E. 7;Brown v. Wright, 194 Mass. 540, 544,8 N.E. 612;Boston Safe Deposit & Trust Co. v. Blanchard, 196 Mass. 35, 39, 81 N.E. 654;White v. Underwood, 215 Mass. 299, 301, 102 N.E. 426;Brown v. Spring, 241 Mass. 565, 568, 135 N.E. 701;Calder v. Bryant, 282 Mass. 231, 238, 184 N.E. 440, 94 A.L.R. 18;Bamford v. Hathaway, 306 Mass. 160, 162, 27 N.E.2d 711;Boston Safe Deposit & Trust Co. v. Park, 307 Mass. 255, 261, 29 N.E.2d 977;Robertson v. Robertson, 313...