Wyeth v. Stone

• Decision Date: 09 May 1887
• Citation: 11 N.E. 729,144 Mass. 441
• Parties: WYETH and another v. STONE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 441

11 N.E. 729

WYETH and another v. STONE.

Supreme Judicial Court of Massachusetts, Middlesex.

May 9, 1887

COUNSEL

C.S. Lincoln and E.J. McInnes, for demandants.

The determination of the question involved in this case depends mainly upon the third clause of the will of Jaiel Baker, and the laws of this commonwealth relating to the adoption of children. At the time of the making of the will (December 10 1872) and the death of Jaiel Baker (January 24, 1873) the demandants and Elizabeth Jones were the only next of kin of his wife, Catherine; and at the time of the death of said Catherine they were her only next of kin by blood. The clause in the will is as follows: "Third. After the payment of the foregoing legacies, I give, bequeath, and devise all the remainder of my estate to my adopted daughter, Eliza Stone wife of Howard Stone, of said Waltham, in her own right; but if the said Eliza Stone shall die without issue before the decease of my said wife, then I give, bequeath, and devise said remainder to the heirs at law of my said wife." It seems clear that the testator only contemplated the collateral heirs of his wife, and that it was manifestly his intention that his estate, if Eliza Stone died without issue before his wife, should be taken by his wife's heirs by blood. And it may be further urged that the intention of the testator was to exclude the tenant, not only from receiving any part of his estate by will, but from ever receiving any part by inheritance, unless through the possible children by his wife, Eliza. His wife dying without issue before Mrs. Baker, he could never have acquired any part of the estate by inheritance. Had the last paragraph in the third clause in the will been omitted, Eliza Stone would have had a vested interest in the remainder. Putnam v. Story, 132 Mass. 206; Blanchard v. Blanchard, 1 Allen, 223; Abbott v. Bradstreet, 3 Allen, 587. She might then have devised her vested interest by will to her husband, or have conveyed it to him by intermediate deeds. Gen.St. c. 108, §§ 3, 9. This shows the caution taken by the testator to exclude the tenant. He put it entirely out of the power of his wife to dispose of it by will, which power he might have given her if he had desired. The testator never could have contemplated the tenant becoming an heir of his wife. It seems, then, to follow that, at the death of the wife of the tenant, the demandants had a vested interest in the contingent remainder, which could not be defeated by the adoption of the tenant. Putnam v. Story, 132 Mass. 205. The tenant can only be regarded as an "heir by adoption" with the limited rights given him by the statutes. The demandants, then, are entitled to the demanded premises, unless the tenant is substituted for them by virtue of his alleged adoption by the wife. The statutes in force at the time of the adoption were Acts 1876, c. 213, re-enacted Pub.St. c. 148. The remainder referred to in the third clause of the will consists entirely of real estate, in which the wife had only a life-interest. Pub.St. c. 126, § 4. The tenant accordingly takes nothing under this section of the statute.

The only other material provision appears in Acts 1876, § 9. In this case the testator was not the adopting parent, and no intention appears to include any adopted child, much less the tenant.

As the case of Sewall v. Roberts, 115 Mass. 262, may be cited, we reply that that case was decided under a very different statute from that of 1876. See Gen.St. c. 110, § 7. The case, therefore, is in that view entirely irrelevant to the present question.

E.G. Loomis, for defendant.

The defendant being, by the statutes of adoption, (St.1876, c. 213; Pub.St. c. 148, §§ 6, 7,) only heir of testator's wife, took at her death, under third clause of will, the entire remainder of estate. The defendant claims that the expression "heirs at law" is a designatio personoe. It refers to the class who would have inherited property from testator's wife had she left any. As they could not be ascertained till her death, he is her only heir. The heirs at law of Catherine Baker were determined as of the date of her death. Nemo est hoeres viventis. A devise by a testator of a remainder after a life-estate to the heirs of the life-tenant vests the remainder in the heirs as ascertained at the death of the life-tenant. See Putnam v. Gleason, 99 Mass. 454; Loring v. Thorndike, 5 Allen, 257; Richardson v. Wheatland, 7 Metc. 169. The term "heirs at law" is a mere designatio personoe of those who were to be purchasers under the will. "They are to take by force of the will as purchasers." Clarke v. Cordis, 4 Allen, 466, 480. "This being a mere designatio personarum, they would take as purchasers under that designation." Richardson v. Wheatland, 7 Metc. 169, 175. The term "heirs at law" does not mean "heirs of the body." Neither does it mean children, but heirs properly. See Gen.St. c. 110, § 7, and Sewall v. Roberts, 115 Mass. 262, 277. "The terms of the settlement above cited do not limit the estate expressly to the heirs of the body of Roberts." Sewall v. Roberts, ubi supra. See Clarke v. Cordis, 4 Allen, 466, 480; Putnam v. Gleason, 99 Mass. 454, 456. There is no inference in the case at bar that the testator did not use this expression in its true sense; for it is morally certain that he did not have specially in view either children or "heirs of the body" of his wife. To so hold would be to hold that the devise has lapsed; and this, contrary as well to the presumed intention as to the true construction of the language. The fact that the statute of adoption under which defendant claims as heir was passed subsequently to the probate of the will does not affect his right as a purchaser under the will. This is proved by Sewall v. Roberts, ubi supra; Loring v. Thorndike, 5 Allen, 257. The words "except as regards succession to property," in section 6, c. 148, Pub.St., cannot be held to impair the defendant's title, because he does not take this estate by succession, but by purchase. The phrase in section 7 must be construed to refer to property not to be inherited from other kindred of said parent, in order to make it harmonize with the other provisions of the same section. The language of section 8, c. 148, Pub.St. cannot be held to affect defendant's title, because the term "heirs at law" in the will is not an equivalent of the term "child."

OPINION

MORTON C.J.

Jaiel Baker died in 1873, leaving a widow, and no children except an adopted daughter, Eliza Stone. By his will he left all his property to a trustee, who was to pay all the income to his wife during her life. By the second clause he gave, at the death of his wife, certain pecuniary legacies to her nephews and neices. The third clause is as follows: "After the payment of the foregoing legacies, I give, bequeath, and devise all the remainder of my estate to my adopted...