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has an interest in the disposition of the trust fund formerly held by the defendant Benjamin Hall, Jr., as trustee for complainant's deceased wife. At the outset, under the will of Hezekiah Anthony, the trust estate consisted of $5,000 and of a house and land in Fall River, Mass. Under the will the trustee was authorized to convert the said house and land into money and reinvest the proceeds. It appears that this conversion was made by the original trustee, and that thereafter, and down to the death of the said Helen Cook Quinn, the trust fund consisted solely of money or other personal property and was such at the time when it was finally distributed under the decree of July 10, 1911.

pecially is this true in the case of the word "inherit," which is very commonly used to describe some method, aside from descent, by which property is taken on one's death. In Dohn's Ex'r v. Dohn, 110 Ky. 884, 898, 62 S. W. 1033, 1036, it was held that the word "inherit," as used in a clause in the will which, after providing that the estate shall be divided in single parts among children or their heirs, provides that the issue of the children dying shall inherit the share of the parent, is not used as a word of limitation to indicate that the issue of the dead child shall take from and through the parent and not from a testator, but loosely in lieu of "take," the court saying:

"Indeed, it seems probable that the word 'inherit' is loosely used in lieu of 'take', as frequently occurs in wills."

In Kohl v. Frederick, 115 Iowa, 517, 88 N. W. 1055, the word "inherit," as used in an antenuptial agreement, evidenced by a writing made after the marriage between the husband and wife, both of whom had children by a former marriage, that neither of the parties should inherit any claim, right, or interest in or to any estate of the other, will not be used in its strict technical sense, but in the sense of "take" or "have," and thus the wife was excluded from taking a dower interest in the husband's estate.

The will of Hezekiah Anthony has been construed in Cook v. Dyer, 17 R. I. 90, 20 Atl. 243, wherein it was held that, under the provisions of the seventeenth and twenty-second clauses of the will, Helen Cook took an equitable life estate, and that upon her decease the property would pass under the last portion of the twenty-second clause of the will. The question as to the parties entitled to take upon the termination of the equitable life estate was not before the court nor considered by it, and is now, for the first time, presented for determination. The contention of the complainant is that, as husband of the life beneficiary, he is enIn 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:

"In all cases where I have given property in trust for the use and benefit of other persons, and have not specially provided for its disposition on their decease my will is that the trustee holding such property shall on such decease pay and convey the same in fee simple discharged of all trusts to the persons who by the laws of the State of Rhode Island would inherit it had the persons for whose benefit it was so given died seised and possessed thereof in fee."

The substantial question involved is the determination of the testator's intent as to the disposition of the trust estate after the death of Helen Cook. The respondents contend that the word "inherit" should be construed in its technical signification, so that the heirs at law, as such, are entitled to the final distribution of the trust fund, and that the complainant is barred from taking at the death of his wife. An examination of the will, however, shows that the word "inherit" was not used in any such sense, but rather as equivalent to "take"; it being the intent of the testator that the property should pass as the intestate property of Helen Cook. It may be admitted that in its strictest technical sense the word "inherit” means to take as an heir at law, by descent. While words are to be construed according to their technical meaning whenever possible, nevertheless the courts have not hesitated to adopt a broader interpretation whenever necessary to effectuate the intent of the testator. Es

inherit as my portion after my father's death." The court held that "the word 'inherit' was not used in a technical sense," but that "it often means 'to become possessed of'; and in that sense it was doubtless employed by the testatrix.”

In Hill v. Giles, 201 Pa. 215, 50 Atl. 758, it was held that the words "shall be inherited by" were used as the equivalent of "go to" or "be received by."

So in Harris v. Dyer, 18 R. I. 540, 28 Atl. 971, this court held that the word "inherit," as there used in a will, would not be used in its strict sense of taking by descent, but merely as equivalent to "take."

It is evident from the will itself that the testator did not use the word "inherit" in its technical legal significance as denoting the passing of title to real property by descent, and that the prima facie presumption as to the meaning of the. word is rebutted by the actual intent of the testator, as shown by the internal evidence of the will itself.

The general character of the will does not tend to strengthen any presumption that the words are used in a technical sense. As pointed out by this court in Cook v. Dyer, 17 R. I. 90, 20 Atl. 243, this particular will was not drafted in a precise or careful manner, nor with regard to the careful use of words, supposed to be used in a technical sense. Thus the court points out with reference to clauses 17 and 22 of the will that:

"The two clauses, instead of coalescing, exhibit an irreconcilable repugnancy, owing to the words of inheritance and representation that are added to said Helen's name."

And further:

"The clause indicates that the testator used the words 'heirs, executors, and administrators' very indefinitely, and that, at any rate, he did not regard them as words by which the disposition of the trust estates was specially provided for after the decease of the persons for whose benefit they were the more immediately given."

The failure to use words in their strict technical sense is apparent from an examination of the twenty-second clause in connection with the seventeenth clause of the will. The testator uses the word "inherit," which the respondents claim is used to denote the class who would take title to real property by descent from Helen Cook. It is evident that the testator by this twenty-second clause intended to provide a method for complete disposition of the trust property upon the termination of the life estate. Even at the inception of the trust, said estate consisted in part of personal property, and as to this part, and the accumulations of rents and profits from the real estate, the word "inherit" would have no strict application, since no one would "inherit" the personalty; the same passing to the next of kin or to the surviving husband. Furthermore, the testator, by vesting in the trustee an express power to sell the real estate, contemplated the conversion of the realty into personalty during the life of the life tenant, in which case the word "inherit" would have no technical applicability. As a matter of fact, as shown by the allegations of the bill, the power of sale was exercised by the trustee during the lifetime of the life beneficiary, and the trust property at the time of her decease had been actually and entirely converted into personalty in the form of cash and securities.

That the testator contemplated that the trust estate would be personalty either in whole or in part, at the time of the death of Helen Cook is shown by the direction that upon such decease the trustee holding such property shall "pay" and "convey." Obviously the word "pay" can have no application other than to personalty, as to which the word "inherit," in its strictest legal sense, is without significance.

It is an established rule of construction that, where the estate to be divided is in the form of personalty, the words "heirs" or “heirs at law” shall be held to mean those entitled to succeed to personal estate in case of intestacy.

Thus in Lawrence v. Crane, 158 Mass. 392, 33 N. E. 605, the will provided:

"When my estate shall finally be disposed of by my said trustees, or the survivor of them, and all collections made that can be made, then my said trustees, or the survivor of them, shall dispose of the net proceeds in their hands by dividing the same among my heirs at law as provided for by the laws of the commonwealth of Massachusetts."

The court said:

"When it is contemplated that real estate shall be changed into money before going to the heirs at law, then those words are held to mean those entitled to succeed to personal estate in case of intestacy.'

In Kendall v. Gleason, 152 Mass. 457, 25 N. E. 838, 9 L. R. A. 509, the court said: trust terminated as to his share, which then immediately became payable 'to his legal heirs.' The will contemplated a change of the real estate to personal property in the hands of the trustees, and that it should go to the heirs in the form of personal property. The words 'lethose who would take personal property under gal heirs' must therefore be construed to mean the statute of distribution."

"On the death of Stillman A. Gleason the

So in Houghton v. Kendall, 7 Allen (Mass.) 72, it was held that, where the word “heirs" is used in a gift of personalty, it should primarily be held to refer, not to those who would take realty by descent, but to those who would be entitled to take intestate estate of the person whose "heirs" they are called.

The inference as to the intent of the testa

tor in these cases is aptly stated in White v. Stanfield, 146 Mass. 424, 436, 15 N. E. 919,

925, as follows:

"Where a testator establishes a fund consisting of personal property for the purpose of providing an income for life for his son, and this is apparently his principal object, and when, aftto the son's 'heirs at law,' his intention is not er his son's decease, he directs it to be paid over so much to make a bequest of it, or direct further how it shall go, as it is to surrender the disposition of the fund, as if it were actually the son's to those upon whom the law would in such case devolve it."

In regard to these cases last above cited, it is to be noted that in Lawrence v. Crane, Kendall v. Gleason, and White v. Stanfield, supra, where the words "heirs at law" were used, it was nevertheless held that not only the next of kin under the statute of distributions, but also the "widow, as a person entitled under the statute," would be entitled to share in the fund to be distributed.

For other cases where the word "heirs," used in a will relating to the disposition of personal property, has been held to mean those entitled under statutes of distribution as in case of intestacy, and including widows, see Wright v. Methodist Church, 1 Hoff. Ch. (N. Y.) 202, 212; Freemen v. Knight, 37 N. C. 72; Hascall v. Cox, 49 Mich. 435, 13 N. W. 807; Corbitt v. Corbitt, 54 N. C. 114; Kiser v. Kiser, 55 N. C. 28; Eddings v. Long, 10 Ala. 203; Jacobs v. Prescott, 102 Me. 63, 65 Atl. 761; Trenton Trust, etc., Co. v. Donnelly, 65 N. J. Eq. 119, 55 Atl. 92; West's Estate, 214 Pa. 35, 63 Atl. 407.

under a settlement in trust or a will disposIt has likewise been repeatedly held that, ing of personal property, using the word "heirs," the husband of a beneficiary is entitled to the wife's interest as in case of intestacy, where the statute gives him the right to her intestate property or a portion thereof. Sweet v. Dutton, 109 Mass, 589, 12 Am. Rep. 744.

"In cases where the word 'heirs' in a deed or will has been construed to mean distributees of personal property under the statute of distributions, and that statute has given the whole or a part of the personal property of a deceased husband or wife to the wife or the husband, they have taken the property in the same manner as under the statute." Lavery v. Egan, 143 Mass. 389, 393, 9 N. E. 747. See, also, Lincoln v. Perry, 149 Mass. 368, 374, 21 N. E. 671, 4 L. R. A. 215; International Trust Co. v. Williams, 183 Mass. 173, 66 N. E. 798; Gray v. Whittemore, 192 Mass. 367, 381-383, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246; Eby's Appeal, 84 Pa. 241, 246; Turner v. Burr, 141 Mich. 106, 110, 104

N. W. 379.

The language used by the testator at the conclusion of the twenty-second clause of the will, and which has already been decided to be applicable to the final disposition of the trust fund held for the benefit of Helen Cook (Quinn) (see Cook v. Dyer, supra), is as fol

lows:

"In all cases where I have given property in trust for the use and benefit of other persons and have not specially provided for its disposition on their decease my will is that the trustee holding such property shall on such decease pay and convey the same in fee simple discharged of all trusts to the persons who by the laws of the state of Rhode Island would inherit it had the persons for whose benefit it was so given died seised and possessed thereof in fee."

The trust fund, as above shown, was all personal property; the real estate originally included therein having been lawfully converted into personal estate by the first trustee long before the death of the beneficiary and so remaining. The above-quoted language plainly shows the testator's intention that the trust fund should, after the death of Helen Cook Quinn, be paid over to the persons who would take the same had Mrs. Quinn been possessed of the fund in her own right at the time of her decease, had she died intestate.

Gen. Laws of R. I. 1909, c. 312, § 10, provides as follows:

"Sec. 10. Administration of the estate of a person dying intestate shall be granted as follows: ** * Second. If the deceased was a

married woman, to her husband, if competent, who shall not be compelled to distribute the surplus of the personal estate, after payment of her debts, but shall be entitled to retain the same for his own use."

Substantially the same statute was in force at the time of the making of testator's will and of the probate thereof, and has continued in force ever since. Pub. Stat. R. I. 1882, c. 184, § 7. This statute was considered in Kenyon v. Saunders, 18 R. I. 590, 30 Atl. 470, 26 L. R. A. 232, and was held to be a re-enactment of the Statute of 29 Charles II, and to be declaratory of the common-law rule that "under the common law the personal estate of the wife became the husband's, and on her death he could administer on her estate and retain the surplus after paying her funeral charges, and if another administered he held the surplus as trustee for the husband"; the only changes brought about by subsequent legislation being power in the wife to dispose of her personal estate by

will and the liability of her estate for her debts. See, also, Caswell v. Robinson, 21 R. I. 193, 42 Atl. 877.

In view of these authorities, it is beyond question that, if Helen Cook Quinn had been possessed in her own right of this trust fund at the time of her death, it would have gone to her husband, the complainant in this case, under the statute above quoted; and that, under the terms of the will as above set forth, such must be deemed to have been the testator's intention. This statute gives to the husband the exclusive right to the surplus of the personal estate of his deceased intestate wife, and it is immaterial that such provision is not contained in the statute of descent and distribution, so called. Careful examination of the briefs for the several defendants discloses nothing which in any wise tends to affect our opinion as above expressed as to any point discussed. We find that the superior court erred in sustaining the several demurrers to the bill and in dismissing the bill by the decree from which the appeal is taken. The complainant is entitled to the fund formerly held by the trustee, Benjamin Hall, Jr., for the benefit of Helen Cook Quinn, and should have been made a party to the original bill for the termination of the trust and for the disposition of the trust fund.

The decree appealed from is reversed; the complainant is entitled to the relief prayed for in his bill, and may present a decree for the approval of this court in accordance with this opinion.

BAKER, J. (dissenting). I concur in the opinion of the majority of the court with the exception of that part thereof which construes the last part of the twenty-second clause of the will of Hezekiah Anthony in connection with the seventeenth clause thereof as they relate to the disposition of the trust estate created by the last-named clause upon the death of Helen Quinn, formerly Helen Cook. Construction of the clause first named becomes necessary, because no part of the corpus of said trust estate was transferred to the life tenant during her life, as was possible by the terms of the said will. The last part of the twenty-second clause of the will is quoted in the majority opinion and need not be here repeated.

The seventeenth clause is as follows:

to

"I give, devise, and bequeath to Sarah And Cook, in trust for Helen Cook, widow of Enos A. Cook, the sum of five thousand dollars, and also the house and land where said Enos A. Cook formerly lived, on Almy street, in Fall River, commonwealth of Massachusetts; have and to hold the same to her, the said Sarah Ann Cook, her heirs, executors, and Cook, widow of Enos A. Cook, her heirs, execuadministrators, for the use and benefit of Helen tors, and administrators, with power to manage the same generally, and, if need be in her opinion, to sell the same and reinvest the proceeds ment thereof whenever in her opinion it shall thereof, and with power to change the investseem best and with power also to convey said real estate to her, her heirs, and assigns, at any

time when she may think proper, and with power to pay over to her said money or any part thereof, according to her discretion."

ture of the property disposed of shows that the testator, at the death of said Helen, did not intend to give it to her heirs but to those entitled to take her personal estate upon her dying intestate.

In Cook v. Dyer, 17 R. I. 90, 20 Atl. 243, this court, in construing clause 17, held that Helen Cook took an equitable life estate thereunder. The simple question of construction now presented is: Who were the persons meant and pointed out as beneficiaries by the following words of the twenty-second persons were entitled as beneficiaries by the clause:

"My will is that the trustee holding such property shall on such decease pay and convey the same in fee simple, discharged of all trusts, to the persons who by the laws of the state of Rhode Island would inherit it had the persons for whose benefit it was so given died seised and possessed thereof in fee."

In construing a will, the words should be given their ordinary and usual significance. But, where technical words are used, they are presumed to be used technically, and they will be so construed unless a clear intention to the contrary is apparent from the context. 40 Cyc. 1396, 1398. The word "inherit" is of course a technical word, and used technically means "to take property by descent as an heir." Anderson, Law Dict. The word "heir" is also a technical term, in strictness meaning “one born in lawful matrimony who succeeds by descent and right of blood (Richards v. Martin, 55 N. H. 47), or, as stated in Richard v. Miller, 62 Ill. 422, "an heir is one who inherits," showing that in the present case "the persons who * * * would inherit it" are identical in meaning with the word "heirs." Strictly speaking, the words "inherit" and "heirs" are words used in respect to real estate only. It is unquestionably true, however, that courts have not hesitated to subordinate the language to the manifest intention of the testator, and in so doing, if necessary, will give a secondary and untechnical meaning to technical terms. The words "inherit" and "heirs" have both been interpreted in a secondary and untechnical sense, the latter the more frequently than

the former because the occasions for its construction by courts have been the more nu

merous.

The nature of the property disposed of is well recognized as something to be considered in interpreting wills when, by fair construction, a question has arisen as to what

language employed in the will to designate them.

Practically all the reported cases pertinent in the present case relate to the construction to be given to the word "heirs" when applied to real estate and personal estate included in the same gift. Under clause 17 of Hezekiah Anthony's will, both real and personal estate were given to the trustee, and the words of clause 22 are applicable to the whole of such estate as might be in the trustee's possession and control at the time of the death of the life tenant. The rule of interpretation applicable in such cases is stated in 1 Roper on Legacies, *p. 93:

"It being always a question of intention as to the meaning of the testator in the use of the word 'heirs,' if it appear that the intent was for the heir, properly and technically such, to take the personal estate, there can be no objection to his title. An instance of that intention may occur when a testator blends his real and personal estates together, and, after giving next heir at law shall afterwards succeed to it. the fund to a person for life, directs that his In this case, the intention that both estates should be enjoyed together is apparent, and to divide them by giving the one to the next of kin would be contrary to the words; consequently a court of equity has no alternative but to adhere to the description in the will and to permit the person answering that description, viz., the heir at law, to enjoy the whole."

So in Kent's Com. vol. 4, 537, note (12th Ed. Holmes):

"But if real and personal estate be devised, after a life estate, to the heirs at law, both the next of kin and the heir at law cannot take, if it appears both descriptions of property were to go together; and then the heir will take the whole."

And in 2 Redfield on Wills, 63:

"But where real and personal estate is blended in the same bequest, there seems ar inconsistency in giving the word 'heir' or 'heirs' a different import with reference to the different subject-matters combined in the same general disposition. This difficulty is referred to in But the question some of the earlier cases. was thoroughly reviewed, and all the cases bearing on this point considered, in the case of De Beauvoir v. De Beauvoir, and the rule fully established that in all such cases the word 'heir' or 'heirs' must receive its natural and ordinary import and construction."

It is urged in the present case that the word "inherit" should not be interpreted technically but in the sense of "take" or "have." The claim is based upon the fact that, in the inception of the trust, part of the estate was personal property, and as to this the word "inherit' could have no strict ap⚫plication, since no one could inherit personalty. Attention is also called to the provision of the will authorizing the trustee to sell the 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:

"That question is: Who is the person to take? Till you ascertain who that person is, the only remaining question is: Did this testator, or not, mean that the same persons who took the real estate should take the personal estate? It does not matter whether he is described as right heir, or whether he belongs to the class of legal right heirs, if he is the person and the only person who can take, supposing the real and personal property are to go together as a blended fund. The moment you ascertain that the heir at law, at the death of the testator, is the person entitled to the real estate, you ascertain at the same moment, assuming the intention, that the same person is to take the personal estate as persona designata."

And on page 552 he says:

"It is said that the effect of this construction will be to give to the two words two senses. It does no such thing. It gives to the right heir two descriptions of property, but in one sense. The fact that the testator's right heir is to take both properties involves no difference of sense at all. One class of this property he does not take in the character of right heir, but, being the right heir, he takes it as a gift under this will. It is perfectly clear that, if the personal property is given to him expressly, he will take it. The words are not used in two senses, but they are used in one sense, to carry both properties according to the intention."

See, also, Haslewood v. Green, 28 Beav. 1; Gwynne v. Muddock, 14 Ves. 448; and Smith v. Butcher, 10 Ch. Div. 112.

This rule of interpretation is adopted by the courts of last resort in many states.

In Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920, the testator gave all the residue of his estate, real, personal, and mixed, to his executor in trust for a daughter during her natural life and at her death to be divided among her children should any survive her, but if she should die without issue, or if her child or children should die before becoming of age, "then the property bequeathed for the benefit of my daughter is to be divided among my heirs at law according to the laws of the state of Virginia." The estate was a large one and included real and personal estate. After considering the point at length as to the meaning of the words "heirs at law" and discussing authorities, the court says:

"We are content to accept the law as declared by the English Court of Chancery, the Supreme Court of Massachusetts, and the eminent text-writers from whom we have quoted. We are therefore of opinion that, as the residuary clause of the will blends real and personal estate and gives it to the heirs at law of the testator, the persons answering that description should enjoy the whole; there being nothing to indicate a contrary intention on the part of the testator."

In Mason v. Baily, 6 Del. Ch. 129, 14 Atl. 309, the testator had divided the rest, residue, and remainder of his estate, real, personal, and mixed, whatsoever and wheresoever the same might be, into six equal parts. He gave one of these equal one-sixth parts to S. "in trust to pay the dividends and rents accruing thereto * * to her sister, my daughter Ann Elizabeth Grimshaw, for and

*

upon her death to convey the same as the said Ann might by her last will direct, and, "on the failure of such last will or testament or instrument, then to convey the same to the right heirs of the said Ann Elizabeth Grimshaw, their heirs and assigns forever." The fourth item of the will was as follows: inafter named or the survivor of them, should "I authorize and empower my executors hereit be deemed necessary, in making distribution of my estate according to this my will, to sell and convey any or all of my estate, either at public or private sale, for the best price that ple to the purchaser or purchasers thereof, or can be obtained, and deed or deeds in fee sim

other conveyances or transfers to make, execute, and deliver."

There was no proof of the nature, character, and description of the property and estate of the testator at the date of his will. At his death he owned two burial lots and a considerable personal estate. The Chancellor considers the meaning of the words "heir," "right heir," and "heir at law" at great length in an elaborate opinion in which many cases are cited and discussed, and says (6 Del. Ch. 158, 14 Atl. 321):

"There is nothing in the context or any part of the will to show that, by the words 'right heirs' of his daughter, he meant any other person or persons than those who were technically such."

And:

"The question in this, as in every similar case, is this: Is the person described described as persona designata or not? The question is: Who is the person to take? It does not matter whether he is described as right heir, or whether he belongs to the class of legal right heirs, if he is the person and the only person who can take, supposing the real and personal property are to go together as a blended fund.*** In all cases, whether the gift is immediate or in remainder, whether it is of personal estate or of a mixed fund of real and personal estate, the question simply is whether there is such a description on the face of the will as amounts to a designatio personæ and enables you to give, to a person not filling the character in which he would be entitled to take it by law, the property which the testator bequeathed to him."

Held, that the entire equal sixth part went to the heirs of said Ann. See, also, Hackney v. Griffin, 59 N. C. 381, 383, and Gordon v. Small, 53 Md. 550, 561.

The rule of interpretation above set forth has been applied in Massachusetts in numerous cases, as, for example, Clarke v. Cordis, 4 Allen (Mass.) 466; Lombard v. Boyden, 5 Allen (Mass.) 249; Fabens v. Fabens, 141 Mass. 395, 5 N. E. 650; Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Rand v. Sanger, 115 Mass. 124; Holbrook v. Harrington, 16 Gray (Mass.) 102; and Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422, 10 L. R. A. (N. S.) 1143, 116 Am. St. Rep. 246.

In Lincoln v. Perry, supra, the testator, who was born and lived a while in New

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