Welch v. Blanchard

• Decision Date: 07 April 1911
• Citation: 94 N.E. 811,208 Mass. 523
• Parties: WELCH et al. v. BLANCHARD et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

208 Mass. 523

94 N.E. 811

WELCH et al. v. BLANCHARD et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 7, 1911

COUNSEL

Henry Wheeler, for Marion Dove Lee and others.

J. L Thorndike, for J. A. Blanchard and others.

OPINION

LORING J.

By the eighth article of his will John Dove gave one-sixth of the residue of his estate to his son outright and five-sixths thereof to trustees to pay the income thereof to all his daughters, in equal shares, and to the issue of any deceased daughter (such issue taking their mother's share), and 'after the decease of the survivor of my daughters the trust fund created by this item shall be distributed to those persons who may then take the same as my heirs.' John Dove died in 1876, and the last surviving daughter died in 1910. The question we have to decide is whether by the true construction of these words this fund is to be distributed to and among those persons who are entitled thereto in 1910 as the heirs of John Dove who died in 1876 (including persons who have succeeded to the rights of his heirs as next of kin or by bequest or assignment), on the one hand, or, on the other hand, to and among those persons who would have been the heirs of John Dove if he had died in 1910 in place of 1876.

A man's heirs are not ascertained until he dies, and using words with accuracy a man's heirs cannot be ascertained at any other time or as of any other time. But a testator may make a gift to persons who would have been his heirs had he died at some time other than the time when he did die. See for example, Peck v. Carlton, 154 Mass. 231, 28 N.E 166. This is not (using words with accuracy) a gift to heirs but to a body of artificial or hypothetical heirs (see In re Wilson, [1907] 2 Ch. 572, 575); i. e., to persons who would have been his heirs had he died under circumstances different from those under which he did die.

The rule of construction in cases like that now before us was settled as early as Abbott v. Bradstreet, 3 Allen, 587, and it is this: 'A bequest or devise to 'heirs' or 'heirs at law' of a testator will be construed as referring to those who are such at the time of the testator's decease, unless a different intent is plainly manifested by the will.' See page 589. This rule has since been adhered to. The last case is Jewett v. Jewett, 200 Mass. 310, 86 N.E. 308. It was said in Whall v. Converse, 146 Mass. 345, 348, 15 N.E. 660, 662, that: 'The reasons for this rule are that the words (heirs of the testator) cannot be used properly to designate anybody else' (than those who take his real estate at his death); that the testator wishes the law to take its course; and perhaps that the law leans toward a construction which vests the interest at the earliest moment.

We do not spend time on a discussion of what the construction of these words in the eighth article of this will would have been if they had stood alone. For they do not stand alone, and the general scheme of the will shows that the intention of the testator was that on the death of the last surviving daughter this fund should be distrbuted to and among those entitled to it then as the real heirs of the testator, including those who had succeeded to the rights of his heirs as next of kin or by bequest or assignment.

The testator was a widower with one son and five daughters, possessed of a very considerable property, about $90,000 of which was in real estate, including his homestead. It does not directly appear that he had any land, in addition to the homestead, except that within the fence around his son's house which he devised to his son.

He first gave legacies amounting to $3,000 to several persons who may be assumed to have been servants, a bequest of $10,000 for a library, and to his two unmarried daughters bequests equal in amount to the sums given by him on their marriage to his other daughters. These sums amounted to some $28,000. Then, by the fourth article of the will, he gave to trustees $2,000 to pay the income thereof to one Mary McLagan during her life, $5,000 to pay the income thereof to one Coulie during his life, and $50,000 to pay the income thereof to his unmarried daughters and the survivor of them so long as they or she remained unmarried and occupied the homestead 'for the purpose of enabling them to keep said homestead in good order and condition.' This (the fourth article) ends with these words: 'The principal sums or funds shall, as the trusts cease, be distributed to my heirs.' By the fifth article he gave to his son the land within the fence of his homestead, and by the sixth article he devised to his unmarried daughters the residue of his real estate for their lives and the life of the survivor so long as they or she should continue unmarried. He then provided that ...