Page images

has an interest in the disposition of the pecially is this true in the case of the word trust fund formerly held by the defendant "inherit,” which is very commonly used to Benjamin Hall, Jr., as trustee for complain- describe some method, aside from descent, ant's deceased wife. At the outset, under by which property is taken on one's death. the will of Hezekiah Anthony, the trust es- In Dohn's Ex'r v. Dohn, 110 Ky. 884, 898, tate consisted of $5,000 and of a house and 62 S. W. 1033, 1036, it was held that the land in Fall River, Mass. Under the will word "inherit,” as used in a clause in the the trustee was authorized to convert the will which, after providing that the estate said house and land into money and rein- shall be divided in single parts among chilvest the proceeds. It appears that this con- dren or their heirs, provides that the issue version was made by the original trustee, of the children dying shall inherit the share and that thereafter, and down to the death of the parent, is not used as a word of limiof the said Helen Cook Quinn, the trust tation to indicate that the issue of the dead fund consisted solely of money or other per- child shall take from and through the parent sonal property and was such at the time and not from a testator, but loosely in lieu when it was finally distributed under the of "take,” the court saying: decree of July 10, 1911.

"Indeed, it seems probable that the word 'inThe will of Hezekiah Anthony has been herit' is loosely used in lieu of 'take', as freconstrued in Cook v. Dyer, 17 R. I. 90, 20 quently occurs in wills." Atl. 243, wherein it was held that, under

In Kohl v. Frederick, 115 Iowa, 517, 88 the provisions of the seventeenth and twen- N. W. 1055, the word "inherit," as used in an ty-second clauses of the will, Helen Cook antenuptial agreement, evidenced by a writtook an equitable life estate, and that upon ing made after the marriage between the husher decease the property would pass under band and wife, both of whom had children the last portion of the twenty-second clause by a former marriage, that neither of the of the will. The question as to the parties parties should inherit any claim, right, or entitled to take upon the termination of the interest in or to any estate of the other, will equitable life estate was not before the not be used in its strict technical sense, but court nor considered by it, and is now, for in the sense of "take" or "have," and thus the the first time, presented for determination. wife was excluded from taking a dower inThe contention of the complainant is that, terest in the husband's estate. as husband of the life beneficiary, he is en- In Graham v. Knowles, 140 Pa. 325, 21 Atl. titled to take the entire balance of the trust 398, the court construed a will wherein the estate.

testatrix devised and bequeathed “all my The last part of the twenty-second clause estate, both real and personal, that I shall of the will is as follows:

inherit as my portion after my father's "In all cases where I have given property death.” The court held that "the word 'in

“ in trust for the use and benefit of other persons, herit was not used in a technical sense,” but and have not specially provided for its disposition on their decease my will is that the trustee that "it often means 'to become possessed of"; holding such property shall on such decease and in that sense it was doubtless employed pay and convey the same in fee simple dis- by the testatrix.” charged of all trusts to the persons who by the laws of the State of Rhode Island would in

In Hill v. Giles, 201 Pa. 215, 50 Atl. 758, it herit it had the persons for whose benefit it was held that the words "shall be inherited was so given died seised and possessed thereof by" were used as the equivalent of "go to" or in fee.”

"be received by." The substantial question involved is the So in Harris v. Dyer, 18 R. I. 540, 28 Atl. determination of the testator's intent as to 971, this court held that the word “inherit,” the disposition of the trust estate after the as there used in a will, would not be used in death of Helen Cook. The respondents con- its strict sense of taking by descent, but tend that the word “inherit" should be con- merely as equivalent to "take.” strued in its technical signification, so that It is evident from the will itself that the the heirs at law, as such, are entitled to the testator did not use the word "inherit" in its final distribution of the trust fund, and that technical legal significance as denoting the the complainant is barred from taking at the passing of title to real property by descent, death of his wife. An examination of the and that the prima facie presumption as to will, however, shows that the word “inherit” the meaning of the word is rebutted by the was not used in any such sense, but rather as actual intent of the testator, as shown by the equivalent to "take"; it being the intent of internal evidence of the will itself. the testator that the property should pass as The general character of the will does not the intestate property of Helen Cook. It tend to strengthen any presumption that the may be admitted that in its strictest techni. words are used in a technical sense.

As cal sense the word "inherit” means to take pointed out by this court in Cook v. Dyer, 17 as an. heir at law, by descent. While words R. I. 90, 20 Atl. 243, this particular will was are to be construed according to their tech- not drafted in a precise or careful manner, nical meaning whenever possible, neverthe- nor with regard to the careful use of words, less the courts have not hesitated to adopt supposed to be used in a technical sense. a broader interpretation whenever necessary Thus the court points out with reference to to effectuate the intent of the testator. Es- clauses 17 and 22 of the will that:


“The two clauses, instead of coalescing, ex- The court said: hibit an irreconcilable repugnancy, owing to the "When it is contemplated that real estate words of inheritance and representation that shall be changed into money before going to the are added to said Helen's name.”

heirs at law, then those words are held to mean And further:

those entitled to succeed to personal estate in "The clause indicates that the testator used case of intestacy." the words 'heirs, executors, and administrators' In Kendall v. Gleason, 152 Mass. 457, 25 very indefinitely, and that, at any rate, he did N. E. 838, 9 L. R. A. 509, the court said: not regard them as words by which the disposition of the trust estates was specially provid

"On the death of Stillman A. Gleason the ed for after the decease of the persons for trust terminated as to his share, which then imwhose benefit they were the more immediately mediately became payable 'to his legal heirs.' given.'

The will contemplated a change of the real es

tate to personal property in the hands of the The failure to use words in their strict trustees, and that it should go to the heirs in technical sense is apparent from an examina- the form of personal property. The words 'letion of the twenty-second clause in connec- those who would take personal property under

gal heirs' must therefore be construed to mean tion with the seventeenth clause of the will. the statute of distribution." The testator uses the word "inherit," which

So in Houghton v. Kendall, 7 Allen (Mass.) the respondents claim is used to denote the 72, it was held that, where the word "heirs” class who would take title to real property by is used in a gift of personalty, it should descent from Helen Cook. It is evident that primarily be held to refer, not to those who the testator by this twenty-second clause in- would take realty by descent, but to those tended to provide a method for complete dis- who would be entitled to take intestate estate position of the trust property upon the ter- of the person whose "heirs” they are called. mination of the life estate. Even at the in

The inference as to the intent of the testaception of the trust, said estate consisted in tor in these cases is aptly stated in White v. part of personal property, and as to this Stanfield, 146 Mass. 424, 436, 15 N. E. 919, part, and the accumulations of rents and 925, as follows: profits from the real estate, the word "inherit” would have no strict application, since ing of personal property for the purpose of pro

“Where a testator establishes a fund consistno one would “inherit” the personalty; the viding an income for life for his son, and this is same passing to the next of kin or to the sur- apparently his principal object, and when, aftviving husband. Furthermore, the testator, er his son's decease, he directs it to be paid over

to the son's 'heirs at law,' his intention is not by vesting in the trustee an express power so much to make a bequest of it, or direct furto sell the real estate, contemplated the con- ther how it shall go, as it is to surrender the version of the realty into personalty during disposition of the fund, as if it were actually the the life of the life tenant, in which case the son's to those upon whom the law would in such

case devolve it." word "inherit” would have no technical applicability. As a matter of fact, as shown

In regard to these cases last abore cited, it by the allegations of the bill, the power of is to be noted that in Lawrence v. Crane, sale was exercised by the trustee during the Kendall v. Gleason, and White v. Stanfield, lifetime of the life beneficiary, and the trust supra, where the words "heirs at law” were property at the time of her decease had been used, it was nevertheless held that not only actually and entirely converted into personal- the next of kin under the statute of distributy in the form of cash and securities.

tions, but also the "widow, as a person entiThat the testator contemplated that the tled under the statute,” would be entitled to trust estate would be personalty either in share in the fund to be distributed. whole or in part, at the time of the death of

For other cases where the word "heirs," Helen Cook is shown by the direction that used in a will relating to the disposition of perupon such decease the trustee holding such sonal property, has been held to mean those property shall "pay” and “convey.” Obvious- entitled under statutes of distribution as in ly the word “pay" can have no application case of intestacy, and including widows, see other than to personalty, as to which the Wright v. Methodist Church, 1 Hoff. Ch. (N. word “inherit,” in its strictest legal sense, is Y.) 202, 212; Freemen v. Knight, 37 N. C. 72; without significance.

Hascall v. Cox, 49 Mich. 435, 13 N. W. 807; It is an established rule of construction Corbitt v. Corbitt, 54 N. C. 114; Kiser v. Kithat, where the estate to be divided is in the ser, 55 N. C. 28; Eddings v. Long, 10 Ala. 203; form of personalty, the words "heirs" or Jacobs v. Prescott, 102 Me. 63, 65 Atl. 761; "heirs at law” shall be held to mean those en-Trenton Trust, etc., Co. v. Donnelly, 65 N. J. titled to succeed to personal estate in case of Eq. 119, 55 Atl. 92; West's Estate, 214 Pa. intestacy.

35, 63 Atl. 407. Thus in Lawrence v. Crane, 158 Mass. 392,

It has likewise been repeatedly held that, 33 N. E. 605, the will provided :

under a settlement in trust or a will dispos“When my estate shall finally be disposed of ing of personal property, using the word by my said trustees, or the survivor of them. “heirs,” the husband of a beneficiary is enand all collections made that can be made, then titled to the wife's interest as in case of inmy said trustees, or the survivor of them, shall testacy, where the statute gives him the right dispose of the net proceeds in their hands by to her intestate property or a portion thereof. dividing the same among my heirs at law as provided for by the laws of the commonwealth Sweet v. Dutton, 109 Mass, 589, 12 Am. Rep. of Massachusetts."


“In cases where the word 'heirs' in a deed or will and the liability of her estate for her will has been construed to mean distributees of debts. See, also, Caswell v. Robinson, 21 R. personal property under the statute of distri- I. 193, 42 Atl. 877. butions, and that statute has given the whole or I. 193, 42 Atl. 877. a part of the personal property of a deceased

In view of these authorities, it is beyond husband or wife to the wife or the husband, question that, if Helen Cook Quinn had been they have taken the property in the same man- possessed in her own right of this trust fund ner as under the statute.” Lavery V. Egan, 143 Mass. 389, 393, 9 N. E. 747. See, also, at the time of her death, it would have gone Lincoln v. Perry, 149 Mass. 368, 374, 21 N. E. to her husband, the complainant in this case, 671, 4 L. R. A. 215; International Trust Co. under the statute above quoted; and that, v. Williams, 183 Mass. 173, 66 N. E. 798; under the terms of the will as above set forth, Gray v. Whittemore, 192 Mass. 367, 381-383, 78 N. E. 422, 10 L. R. A. (N. S.) '1143, 116 such must be deemed to have been the testaAm. St. Rep. 246; Eby's Appeal, 84 Pa. 241, tor's intention. This statute gives to the hus246; Turner v. Burr, 141 Mich. 106, 110, 104 band the exclusive right to the surplus of N. W. 379.

the personal estate of his deceased intestate The language used by the testator at the wife, and it is immaterial that such provision conclusion of the twenty-second clause of the is not contained in the statute of descent and will, and which has already been decided to distribution, so called. Careful examination be applicable to the final disposition of the of the briefs for the several defendants distrust fund held for the benefit of Helen Cook closes nothing which in any wise tends to (Quinn) (see Cook v. Dyer, supra), is as fol- affect our opinion as above expressed as to lows:

any point discussed. We find that the su"In all cases where I have given property in perior court erred in sustaining the several trust for the use and benefit of other persons demurrers to the bill and in dismissing the and have not specially provided for its disposition on their decease my will is that the trustee bill by the decree from which the appeal is holding such property shall on such decease pay taken. The complainant is entitled to the and convey the same in fee simple discharged fund formerly held by the trustee, Benjamin of all trusts to the persons who by the laws of the state of Rhode Island would inherit it had | Hall, Jr., for the benefit of Helen Cook the persons for whose benefit it was so given Quinn, and should have been made, a party died seised and possessed thereof in fee."

to the original bill for the termination of the The trust fund, as above shown, was all trust and for the disposition of the trust personal property; the real estate originally fund. included therein having been lawfully con- The decree appealed from is reversed; the verted into personal estate by the first trustee complainant is entitled to the relief prayed long before the death of the beneficiary and for in his bill, and may present a decree for so remaining. The above-quoted language the approval of this court in accordance with plainly shows the testator's intention that this opinion. the trust fund should, after the death of Helen Cook Quinn, be paid over to the per

BAKER, J. (dissenting). I concur in the sons who would take the same had Mrs. opinion of the majority of the court with the Quinn been possessed of the fund in her own exception of that part thereof which conright at the time of her decease, had she strues the last part of the twenty-second died intestate.

clause of the will of Hezekiah Anthony in Gen. Laws of R. I. 1909, c. 312, § 10, pro- connection with the seventeenth clause therevides as follows:

of as they relate to the disposition of the “Sec. 10. Administration of the estate of a trust estate created by the last-named clause person dying intestate shall be granted as fol- upon the death of Helen Quinn, formerly lows:

* Second. If the deceased was a Helen Cook. Construction of the clause first married woman, to her husband, if competent, who shall not be compelled to distribute the named becomes necessary, because no part surplus of the personal estate, after payment of the corpus of said trust estate was transof her debts, but shall be entitled to retain the ferred to the life tenant during her life, as sarne for his own use.

was possible by the terms of the said will. Substantially the same statute was in force The last part of the twenty-second clause of at the time of the making of testator's will the will is quoted in the majority opinion and of the probate thereof, and has continu- and need not be here repeated. ed in force ever since. Pub. Stat. R. I. 1882, The seventeenth clause is as follows: c. 184, § 7. This statute was considered in

"I give, devise, and bequeath to Sarah Ant Kenyon v. Saunders, 18 R. I. 590, 30 Atl. 470, Cook, in trust for Helen Cook, widow of Enos 26 L, R. A. 232, and was held to be a re-en-A. Cook, the sum of five thousand dollars, and actment of the Statute of 29 Charles II, and also the house and land where said Enos A.

Cook formerly lived, on Almy street, in Fall to be declaratory of the common-law rule River, commonwealth of Massachusetts; to that “under the common law the personal have and to hold the same to her, the said estate of the wife became the husband's, and Sarah Ann Cook, her heirs, executors, and on her death he could administer on ber es- Cook, widow of Enos A. Cook, her heirs, execu

administrators, for the use and benefit of Helen tate and retain the surplus after paying her tors, and administrators, with power to manage funeral charges, and if another administered the same generally, and, if need be in her spinhe held the surplus as trustee for the hus- ion, to sell the same and reinvest the proceeds band”; the only changes brought about by ment thereof whenever in her opinion it shall

thereof, and with power to change the investsubsequent legislation being power in the seem best and with power also to convey said wife to dispose of her personal estate by real estate to her, her heirs, and assigns, at any

[ocr errors]


time when she may think proper, and with pow- , ture of the property disposed of shows that er to pay over to her said money or any part the testator, at the death of said Helen, did thereof, according to her discretion."

not intend to give it to her heirs but to those In Cook v. Dyer, 17 R. I. 90, 20 Atl. 243, entitled to take her personal estate upon her this court, in construing clause 17, held that dying intestate. Helen Cook took an equitable life estate The nature of the property disposed of is thereunder. The simple question of construc-well recognized as something to be considertion now presented is: Who were the per- ed in interpreting wills when, by fair consons meant and pointed out as beneficiaries struction, a question has arisen as to what by the following words of the twenty-second persons were entitled as beneficiaries by the clause:

language employed in the will to designate “My will is that the trustee holding such them. property shall on such decease pay and convey the same in fee simple, discharged of all trusts, in the present case relate to the construction

Practically all the reported cases pertinent , of Rhode Island would inherit it had the per- to be given to the word “heirs” when applied sons for whose benefit it was so given died to real estate and personal estate included in seised and possessed thereof in fee."

the same gift. Under clause 17 of Hezekiah In construing a will, the words should be Anthony's will, both real and personal estate given their ordinary and usual significance. were given to the trustee, and the words of But, where technical words are used, they clause 22 are applicable to the whole of such are presumed to be used technically, and they estate as might be in the trustee's possession will be so construed unless a clear intention and control at the time of the death of the to the contrary is apparent from the context. life tenant. The rule of interpretation appli40 Cyc. 1396, 1398. The word "inherit" is cable in such cases is stated in 1 Roper on of course a technical word, and used techni- Legacies, *p. 93: cally means "to take property by descent as

"It being always a question of intention as to an heir.” Anderson, Law Dict. The word the meaning of the testator in the use of the "heir" is also a technical term, in strictness word 'heirs,' if it appear that the intent was meaning "one born in lawful matrimony who for the heir, properly and technically such, to succeeds by descent and right of blood (Rich- tion to his title.

take the personal estate, there can be no objec

An instance of that intenards v. Martin, 55 N. H. 47), or, as stated in tion may occur when a testator blends his real Richard v. Miller, 62 Ill. 422, "an heir is one and personal estates together, and, after giving who inherits,” showing that in the present next heir at law shall afterwards succeed to it.

the fund to a person for life, directs that his case “the persons who

* * *

would in- In this case, the intention that both estates herit it" are identical in meaning with the should be enjoyed together is apparent, and to word “heirs.” Strictly speaking, the words divide them by giving the one to the next of “inherit” and “heirs” are words used in re- quently a court of equity has no alternative spect to real estate only. It is unquestionably but to adhere to the description in the will and true, however, that courts have not hesitated to permit the person answering that description, to subordinate the language to the manifest viz., the heir at law, to enjoy the whole. intention of the testator, and in so doing, So in Kent's Com. vol. 4, 537, note (12th if necessary, will give a secondary and un- Ed. Holmes): technical meaning to technical terms. The

"But if real and personal estate be devised, words "inherit" and "heirs” have both been after a life estate, to the heirs at law, both the interpreted in a secondary and untechnical next of kin and the heir at law cannot take, if sense, the latter the more frequently than it appears both descriptions of property were the former because the occasions for its con- whole."

to go together; and then the heir will take the

” struction by courts have been the more numerous.

And in 2 Redfield on Wills, 63: It is urged in the present case that the "But where real and personal estate is blendword "inherit” should not be interpreted ed in the same bequest, there seems ar incon

sistency in giving the word 'heir' or 'heirs' a technically but in the sense of “take” or different import with reference to the different “have." The claim is based upon the fact subject-matters combined in the same general that, in the inception of the trust, part of the disposition. This difficulty is referred to in

But the question estate was personal property, and as to this some of the earlier cases.

was thoroughly reviewed, and all the cases the word "inherit could have no strict ap- bearing on this point considered, in the case plication, since no one could inherit personal- of De Beauvoir v. De Beauvoir, and the rule ty. Attention is also called to the provision fully established that in all such cases the of the will authorizing the trustee to sell the word 'heir' or 'heirs' must receive its natural

and ordinary import and construction." real estate, and that therefore the testator contemplated the conversion of realty into There are many decisions in support of personalty during the life of the life tenant, this view. The leading English case is De in which case the word "inherit” would have Beauvoir v. De Beauvoir, 3 H, L. Cas. 524. no applicability in a technical sense, and There a testator gave “all my estate in the that, as a matter of fact, the real estate had funds of England and all my said manors" been converted into personalty when Helen unto three persons in succession, and their Quinn, formerly Helen Cook, died. In other sons successively in tail male, "and for dewords, the complainant claims that the na- fault of such issue I give and devise the same to my own right heirs forever.” The during the term of her natural life," and Lord Chancellor on page 550 says:

upon her death to convey the same as the “That question is: Who is the person to take? said Ann might by her last will direct, and, Till you ascertain who that person is, the only “on the failure of such last will or testament remaining question is: Did this testator, or not, mean that the same persons who took the or instrument, then to convey the same to real estate should take the personal estate the right heirs of the said Ann Elizabeth It does not matter whether he is described as Grimshaw, their heirs and assigns forever.” right heir, or whether he belongs to the class | The fourth item of the will was as follows: of

legal right heirs, if he is the person and the only person who can take, supposing the real

"I authorize and empower my executors hereand personal property are to go together as a inafter named or the survivor of them, should blended fund. The moment you ascertain that it be deemed necessary, in making distribution the heir at law, at the death of the testator, is of my estate according to this my will, to sell the person entitled to the real estate, you ascer- and convey any or all of my estate, either at tain at the same moment, assuming the inten- public or private sale, for the best price that tion, that the same person is to take the per- can be obtained, and deed or deeds in fee simsonal estate as persona designata.”

ple to the purchaser or purchasers thereof, or

other conveyances or transfers to make, execute, And on page 552 he says:

and deliver." "It is said that the effect of this construction There was no proof of the nature, characIt does no such thing. It gives to the right heir ter, and description of the property and estwo descriptions of property, but in one sense. tate of the testator at the date of his will. The fact that the testator's right heir is to take At his death he owned two burial lots and both properties involves no difference of sense a considerable personal estate. The Chanat all. not take in the character of right heir, but, cellor considers the meaning of the words being the right heir, he takes it as a gift under "heir,” “right heir,” and “heir at law” at this will. It is perfectly clear that, if the per- great length in an elaborate opinion in which sonal property is given to him expressly, he many cases are cited and discussed, and says will take it.

The words are not used in two (6 Del. Ch. 158, 14 Atl. 321): senses, but they are used in one sense, to carry both properties according to the intention." “There is nothing in the context or any part

of the will to show that, by the words right See, also, Haslewood v. Green, 28 Beav. 1; heirs of his daughter, he meant any other perGwynne v. Muddock, 14 Ves. 448; and Smith son or persons than those who were technically v. Butcher, 10 Ch. Div. 112.

such.” This rule of interpretation is adopted by And: the courts of last resort in many states. "The question in this, as in every similar

In Allison v. Allison, 101 Va. 537, 44 S. E. case, is this: Is the person described describ904, 63 L. R. A. 920, the testator gave all is; Who is the person to take? It does not

ed as persona designata or not? The question the residue of his estate, real, personal, and matter whether he is described as right heir, mixed, to his executor in trust for a daugh or whether he belongs to the class of legal ter during her natural life and at her death right heirs, if he is the person and the only to be divided among her children should any personal property are to go together as a blend

person who can take, supposing the real and survive her, but if she should die without is-ed fund. * * * In all cases, whether the gift sue, or if her child or children should die is immediate or in remainder, whether it is of before becoming of age, “then the property and personal estate, the question simply is

personal estate or of a mixed fund of real bequeathed for the benefit of my daughter whether there is such a description on the face is to be divided among my heirs at law ac- of the will as amounts to a designatio percording to the laws of the state of Virginia.” sonæ and enables you to give, to a person not

filling the character in which he would be enThe estate was a large one and included titled to take it by law, the property which the real and personal estate. After considering testator bequeathed to him.' the point at length as to the meaning of the Held, that the entire equal sixth part went words "heirs at law” and discussing author- to the heirs of said Ann. See, also, Hackney ities, the court says:

V. Griffin, 59 N. C. 381, 383, and Gordon v. “We are content to accept the law as de- Small, 53 Md. 550, 561. clared by the English Court of Chancery, the Supreme Court of Massachusetts, and the emi

The rule of interpretation above set forth nent text-writers from whom we have quoted. has been applied in Massachusetts in numerWe are therefore of opinion that, as the residu- ous cases, as, for example, Clarke v. Cordis, ary clause of the will blends real and personal 4 Allen (Mass.) 466; Lombard v. Boyden, 5 testator, the persons answering that descrip- Allen (Mass.) 249; Fabens v. Fabens, 141 tion should enjoy the whole; there being noth- Mass. 395, 5 N. E. 650; Lincoln v. Perry, ing to indicate a contrary intention on the 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215; part of the testator."

Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, In Mason v. Baily, 6 Del. Ch. 129, 14 Atl. 12 L. R. A. 721; Olney v. Lovering, 167 309, the testator had divided the rest, res-Mass. 446, 45 N. E. 766; Heard v. Read, 169 idue, and remainder of his estate, real, per- Mass. 216, 47 N. E. 778; Rand v. Sanger, 115 sonal, and mixed, whatsoever and whereso Mass. 124; Holbrook v. Harrington, 16 Gray ever the same might be, into six equal parts. (Mass.) 102; and Gray v. Whittemore, 192 He gave one of these equal one-sixth parts Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) to S. "in trust to pay the dividends and rents 1143, 116 Am. St. Rep. 246. accruing thereto

to her sister, my In Lincoln v. Perry, supra, the testator, daughter Ann Elizabeth Grimshaw, for and who was born and lived a while in New



« ՆախորդըՇարունակել »