Whall v. Converse

• Decision Date: 02 March 1888
• Citation: 146 Mass. 345,15 N.E. 660
• Parties: WHALL v. CONVERSE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

146 Mass. 345

15 N.E. 660

WHALL v. CONVERSE.

Supreme Judicial Court of Massachusetts, Suffolk.

March 2, 1888

COUNSEL

J.D. Ball, for plaintiff.

There being no specific disposition of the income in case the wife marries again, (she having survived both of the children each of whom died without issue,) it will then either fall into the residuum and become part thereof, or will go as intestate estate. The general rule is that all estate, not otherwise devised or bequeathed, falls into the residuum. Thayer v. Wellington, 9 Allen, 295; Allen v White, 97 Mass. 506; Firth v. Denny, 2 Allen, 468; 2 Redf. Wills, 442, 454. This power of disposition is not contingent upon her not marrying again, but even if it was, it would not be material in this case, because she has acquired all the rights of the testator's heirs at law in the principal. The plaintiff has become possessed of every possible interest in the principal or capital, and in the income of the trust fund. A person's heirs at law are those entitled to take at the time of his death. They are to be ascertained at that time. Dove v. Torr, 128 Mass 40; Abbott v. Bradstreet, 3 Allen, 587; Minot v. Tappan, 122 Mass. 535; Bullock v. Downes, 9 H.L.Cas. 1; Mortimer v. Slater, 7 Ch.Div. 322. The word "then" relates to the contingency in which the property is to vest in his heirs at law, and not to the time when his heirs at law are to be ascertained. Cases cited supra. The case of Knowlton v. Sanderson, 141 Mass. 323, 6 N.E. 228, is not in conflict with this. Where the plaintiff has, as in this case, acquired all possible interests in the principal and income of the trust fund, she is entitled to a decree terminating the trusts and ordering the trustee to convey the property to her. Inches v. Hill, 106 Mass. 575; Bowditch v. Andrew, 8 Allen, 341; Smith v. Harrington, 4 Allen, 569; Stone Pet'r, 138 Mass. 476; Parker v. Converse, 5 Gray, 336; Taylor v. Huber, 13 Ohio St. 290; Chesman v. Cummings, 142 Mass. 69, 7 N.E. 13. Whatever may have been the interest of the son and daughter, either in the principal or income of the trust fund, however contingent may have been their interest, it was nevertheless assignable, transmissible, and descendible. 1 Redf. Wills, 391, 392; Winslow v. Goodwin, 7 Metc. 377-379; Putnam v. Story, 132 Mass. 210; Fay v. Sylvester, 2 Gray, 171; Whipple v. Fairchild, 139 Mass. 262. If the words "heirs at law" mean those answering to that description at the time of the death of the testator, then all persons having, or who can have, any possible interest either in the principal or income of the trust fund are before the court. The only persons in interest are the defendant, holding the naked legal title, and the plaintiff, holding the entire equitable title. If, however, these words mean those who shall be the heirs at law of the testator at the time of the happening of the contingency, viz., the death of the plaintiff, without making a testamentary disposition, then it is impossible now to ascertain who they will be; and hence impossible to make them parties to this suit, and they are not necessary parties. Fowler v. James, 1 Phil. 803; Giffard v. Hort, 1 Schoales & L. 407-411; Gaskell v. Gaskell, 6 Sim. 643; Story, Eq.Pl. §§ 144-146; Troy v. Sargent, 132 Mass. 408.

W.H. Orcutt, for defendant.

OPINION

HOLMES, J.

The general rule is settled that in case of an ultimate limitation like that of the fund in question to the testator's heirs at law, the persons to take are those who answer the description at the time of the testator's death. Abbott v. Bradstreet, 3 Allen, 587; Minot v. Tappan, 122 Mass. 535, 537; Dove v. Torr, 128 Mass. 38, 40. The reasons for this rule are that the words cannot be used properly to designate anybody else, that such a mode of ascertaining the beneficiary implies that the testator has exhausted his specific wishes by the previous limitations, and is content thereafter to let the law take its course, and perhaps, that the law leans towards a construction which rests the interest at the earliest moment. There is nothing to take this case out of the general rule, and it requires no discussion beyond what will be found in the decisions cited. It follows, without further...