White v. Stanfield
| Decision Date | 05 March 1888 |
| Citation | 146 Mass. 424,15 N.E. 919 |
| Parties | WHITE v. STANFIELD et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.D. Chapin, for defendant Rosalba C. Stanfield.
The term "heirs at law," in the clause in controversy should be construed strictly, and not as meaning next of kin because it cannot be inferred from the use of the term in other parts of the will, or from any other phraseology in the instrument, that the testator used it in any other than its legal meaning. The gift to the heirs at law of Edward Gray Robinson is not by way of succession or substitution, but it is to them absolutely, as purchasers, of something which their ancestor was in no event to take. Merrill v. Preston, 135 Mass. 451; Clarke v Cordis, 4 Allen, 466; Fabens v. Fabens, 141 Mass. 395, 5 N.E. 650; Smith v. Butcher, 10 Ch.Div. 113; In re Stannard v. Burt, 52 L.J.Ch. 355; Mounsey v. Blamire, 4 Russ. 384; De Beauvoir v. De Beauvoir, 3 H.L.Cas. 524; Lord v. Bourne, 63 Me. 368. The will gives the trustees "authority, from time to time, to change the mode of investment of the several trust funds committed to them, respectively, as they shall judge judicious." As this would authorize an investment in real estate, it would seem that the testator contemplated the possible division of the fund in that form, and that therefore no inference can be drawn in favor of construing the term "heirs at law" as "next of kin," by reason of the bequest having been originally made in personalty. Assuming that the report states a case, within Pub.St. c. 124, § 3, it is submitted that that statute does not constitute the husband or wife of a person dying intestate, and without leaving issue living, an heir of such person; and for a discussion of the soundness of the case of Lavery v. Egan, 143 Mass. 389, 9 N.E. 747, reference is made in the brief submitted on behalf of the defendant Dora Hidell.
William Caleb Loring, for Dora Hidell.
"Heirs at law" does not mean next of kin. The trust property might have been converted into real estate. It was not a case where the word "heirs" denotes succession or substitution, and therefore the case is within Merrill v. Preston, 135 Mass. 451; Fabens v. Fabens, 141 Mass. 395, 5 N.E. 650. It is submitted that "heirs at law" means those persons who were the heirs at law of Edward Gray Robinson, according to the law of Massachusetts, at the date when the will was made; hence, under Rev.St. c. 61, § 1, the widow of the life-tenant took no part of his real estate, but it went to his sister Rosalba and to Dora Hidell. The law in existence when the will was made is to be considered in construing the will. HOLMES, J., in Staigg v. Atkinson, 144 Mass. 564, 569, 12 N.E. 354. In case of a gift to the heirs of the testator, the law of the domicile prevails. 4 Burge, Col.Law, 590; Story, Confl.Law, (8th Ed.) § 479e; Dannelli v. Dannelli, 4 Bush, 51; Harrison v. Nixon, 9 Pet. 483, 504. If a testator changes his domicile after making his will, the law of the domicile where the will was made prevails. Staigg v. Atkinson, supra. If there is a change in the law of his domicile after the making of the will, the law existing at the date of the will prevails. Holmes v. Holmes, 1 Russ. & M. 660. Even if the present law is looked to, the same result is reached. St.1880, c. 211, does not make the widow an heir of her husband. The question is involved in the decision of Lavery v. Egan, 143 Mass. 389, 9 N.E. 747. The law does not cast upon her, immediately on her husband's death, an estate in his lands. What is cast upon her is a right of action, not an estate. She cannot enter upon any particular parcel. A fee in an undivided $5,000 worth of land, in common with the heirs, is not a quality of estate known to the law. After proper action is taken by the probate court, she then for the first time gets an estate. Her right under St.1880, c. 211, is of the same nature as her right to dower. Until an estate is assigned her, she has a mere right of action. That this is true of dower is settled law. Sheafe v. O'Neil, 9 Mass. 13; Hildreth v. Thompson, 16 Mass. 191; Foster v. Gorton, 5 Pick. 185; Croade v. Ingraham, 13 Pick. 33; Sears v. Sears, 121 Mass. 267, 268; Co. Litt. 32b; Park, Dower, 334-340; Gilb.Ten. 46, (26;) Watk. Des. 74, (67,) note e; 4 Kent, Comm. 61; 1 Washb. Real Prop. 5th Ed. (168,) 219; 1 Greenl. Cruise, *15, *19. Any estate cast upon the widow must be one in common with the heir; yet the statute provides that an estate in common shall be assigned her, if it is inconvenient to assign one in severalty. The right under St.1880, c. 211, bears the same relation to that under St.1854, c. 406, (Pub.St. c. 124, § 3,) that dower bore to dower ad ostium ecclesiae. Sears v. Sears, 121 Mass. 267. The distinctive characteristic of an heir is that the persona is immediately cast upon him at the death of the ancestor. Bract.Rom.Law, liber 2, c. 29, fol. 62b; Co. Litt. 7b, 237a; 2 Bl.Comm. 201; Lavery v. Egan, 143 Mass. 389, 392, 9 N.E. 747. On a man's death, his estate is immediately cast upon his heir. Brown v. Wood, 17 Mass. 67, 74; Green v. Chelsea, 24 Pick. 71, 78; Watk.Des. (25, 26,) 33, 34; Goodtitle v. Newman, 3 Wils. 516, 526. For applications of the rule, see Litt.Ten. §§ 448, 681; Co. Litt. 31a, 358b; Watk.Des. (33,) 42, and cases cited; 2 Kent, Comm. (3d Ed.) 389, (418;) Goodtitle v. Newman, supra; Litt.Ten. § 385; Gilb.Ten. 39, (21,) 42, (24;) Hargrave, note 159 to Co. Litt. 239b; Kitch. Courts-Leet, 292; Watkins, note 23 to Gilb.Ten. (24,) 42; Fitzh.Abr. "Relief;" 12 Temp.Edw.I. Because of this rule an heir cannot disclaim if he would. Williams, Real Prop. (6th Ed.) 97; 3 Washb. Real Prop. (5th Ed.) 6, (402.) And the heir is seized until dower is assigned. Sheafe v. O'Neil, 9 Mass. 13; 1 Greenl. Cruise, 180, (168;) Gilb.Ten. (26, 27,) 45. The rule is law to-day. It is a corollary of the fundamental rule that the seizer can never be in abeyance, which is often applied: (1) A freehold estate cannot be made to begin in futuro; (2) A contingent remainder is bad if not supported by a particular estate of freehold. The difference in the manner of taking by an heir and by the widow leads to different results. The heir cannot disclaim; the widow may. If the wife die seized of real estate, and the husband marry again, but die before applying for his $5,000 worth of land, his second wife would not have dower under St.1880, c. 211. The wife of an heir would have dower. The rents accruing between the death of the owner and the assignment go to the heir. If the owner die disseized, the writ of entry must be brought by the heir, making a difference again as to mesne profits. The testator's gift, to the "heirs at law" of the life-tenant is not to those who would have taken in case of intestacy, but to those who would have taken as heirs in case of intestacy. The will shows on its face that it was carefully drawn by one learned in the law; and a gift to heirs was at that time recognized as a gift to those who take as heirs in a technical sense. No intent to include his son's wife is to be gathered from the context. Even as a matter of proper technical classification, the widow is not an heir. The estate is like an estate by purchase, in that it is finally obtained by the widow's act in making application for it to the probate court. It is like an estate by descent, in that the right to get it is cast upon the widow by the law. It is therefore an estate, neither by purchase nor by descent, but by appointment of law, of the same nature--First, as that under St.1854, c. 406; second, and the life-estate of a special occupant of an estate per autre vie, (Ripley v. Waterworth, 7 Ves. 425, 437; Doe v. Luxton, 6 Term R. 289, 291;) third, a title by escheat, (Hargrave, note 106 to Co. Litt. 18b;) fourth, that under Arizona St. c. 124, § 124. The widow is not an heir from the way in which she takes, (see Gilb.Ten. (26, 27,) 45,) and from what she takes. She takes precedence of the heir, like a creditor having a right to support, previously recognized as to personalty, (Pub.St. c. 135, § 2;) and life insurance, (Pub.St. c. 119, § 167; Gould v. Emerson, 99 Mass. 154-156.) Holding the widow an heir would give rise to endless confusion and litigation. When this bill was brought, the son, Edward Gray Robinson, had not been dead a year. It had not been ascertained whether, out of his estate, his widow would receive her $5,000 worth of land; and therefore, at that time, the sister and niece were the son's heirs.
John A. Loring, for defendant Anna E. Robinson.
The testator was domiciled in this state at the date of the will and at the time of his death; hence its construction and effect, and the distribution made by it of the testator's estate, are to be governed by the law of this state. Sewall v. Wilmer, 132 Mass. 131; Merrill v. Preston, 135 Mass. 451. The law of this state must also determine who are the persons entitled to take under the designatio personarum; hence the persons entitled to take as heirs at law of Edward G. Robinson must be ascertained by the law of this state. Story, Confl.Law, § 479e; 2 Kent, Comm. (12th Ed.) 429; Harrison v. Nixon, 9 Pet. 483; Blake v. Williams, 6 Pick. 285, 314. The testator must have been aware, when he made this will, that by the laws of Massachusetts his son's widow would be entitled to one-half his estate, if he had any; and he must be deemed, in what he did, to have contemplated this fact; and he must be held to have made his will in view of circumstances which existed then, or might reasonably be expected to occur. Upham v. Emerson, 119 Mass. 509; Minot v. Harris, 132 Mass. 528. And so he must have intended that upon his son's death the property should go to those persons to whom his son's estate passed according to...
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