CHAPTER XI

MEANING OF HEIRS IN A LIMITATION TO THE TESTATOR'S HEIRS OR THE HEIRS OF A LIVING PERSON

HOLLOWAY v. HOLLOWAY.

(Court of Chancery, 1800. 5 Ves. 399.)

Edward Reeves by a codicil, dated the 21st of July, 1763, gave to trustees the sum of £5000: in trust to put the same out at interest on Government or other securities, and to pay the interest, income and produce, thereof to his daughter Hindes for and during the term of her natural life, separate and apart from her husband. The codicil then proceeded thus:

"And after the decease of my said daughter Hindes then upon this farther trust, that they, the said Augustine Batt and Benjamin Holloway, their executors or administrators, do pay the said £5000 unto such child or children of my said daughter Hindes as she shall leave at the time of her decease in such shares and proportions as she shall think proper to give the same; and in case she shall die leaving no child, then as to £1000, part of the said £5000, in trust for the executors, administrators or assigns, of my said daughter Hindes: and as to the £4000 remainder of the said £5000, in trust for such person or persons as shall be my heir or heirs at law."

The testator died in 1767; leaving his daughter Susannah Hindes. and two other daughters his co-heiresses at law and his next of kin at the time of his death. Susannah Hindes having survived her husband died without issue in August, 1798.

The bill was filed by the great-grandchildren of the testator by his two other daughters, the plaintiffs being his co-heirs at law at the death of Susannah Hindes, against the representatives of the surviving trustee, and against several other persons, who with the plaintiffs were the next of kin of the testator and of Susannah Hindes; praying, that the plaintiffs, as co-heirs of the testator at the death of Susannah Hindes, may be declared entitled to the said £4000, &c.; or in case the court shall be of opinion, that any other construction ought to be put upon such bequest, then that the rights of the plaintiffs and defendants may be declared, &c.

MASTER OF THE ROLLS [Sir RICHARD PEPPER ARDEN]. This question arises upon a very doubtful clause in this codicil. Unquestionably it is competent to a testator, if he thinks fit, to limit any interest to such persons as shall at a particular time named by him sustain a particular character. The only' question is, whether upon the true construction

of this codicil it must necessarily be intended, he did not mean by these words what the law prima facie would, strictly speaking, intend, heirs at law at the time of his death. A testator certainly may by words properly adapted show, that by such words persona designata, answering a given character at a given time, is intended. But prima facie these words must be understood in their legal sense, unless by the context or by express words they plainly appear to be intended otherwise. In this case these words are not necessarily confined to any particular time: nor from the nature of the gift is there any necessary inference, that it should not mean, what the law would take it to mean, heirs at the death of the testator. It is not like the case of Long v. Blackall, 3 Ves. Jr. 486. The words there put it out of the power of the court to put upon it any other interpretation; though it was much contended, that it meant at the death of the testator. In that case the word "then" plainly proved that the personal representatives at the time of the death were not intended; and if that word had not occurred, there was a great deal to show, it could not be the intention (and that applies here); for there the wife was his executrix; and it would have been a strange, circuitous, way of giving it to her.

In Bridge v. Abbot, 3 Bro. C. C. 224, and Evans v. Charles, 1 Anstr. 128, a great deal of discussion took place upon such words as these. In the first of these cases it was contended, and I had for some time little doubt upon it, that it was intended to give a vested interest to a party, who was dead before: but from the absurdity of that and of letting it be transmissible from a person, in whom it never vested, I was of opinion, that upon the true construction it must have been intended such persons as at the death of the testatrix would, if John Webb had then died, have been his personal representatives. I wish to add a few words to the report of that case, to show, what the decree was. The report states, that I declared the persons entitled as legal representatives to be the persons, who would have been entitled as next of kin to John Webb at the death of Mary King. I desire, that these words may be added: "in case he had at that time died intestate." I believe, those words were added in the decree.

The case of Evans v. Charles arose upon similar words, but under very dissimilar circumstances. Lord Chief Baron Eyre observes upon Bridge v. Abbot; and though the decision of the court was different from mine, they seem to think my opinion right in that case. Evans v. Charles was determined upon other grounds; upon which the Court of Exchequer felt themselves obliged to give to the administratrix of the creditor. There is certainly an obvious distinction between them. It was truly said in Evans v. Charles, that it must always be taken together with the context. The words must have their legal meaning, unless clearly intended otherwise. In this case I was struck with the circumstance of the gift to the daughter for life, &c.; giving it to the heirs at law; of whom she would be one. But that alone would not, I

apprehend, be sufficient to control the legal meaning of the words. If an estate for life was devised to one, and after his death to the right heirs of the testator, it never would be held, that, though the tenant for life was one of the heirs, that would reduce him to an estate for life: but he would take a fee.

Long v. Blackall has that very leading distinction from this case. upon the word "then"; that there could be no doubt personal representatives at a given time were intended. I must therefore hold, that, if that word had not occurred, the judgment of the Lord Chancellor would not have been such as it was; but, as it is, I perfectly concur in that judgment, together with the argument from the circumstances.

In this case I cannot upon that ground alone, that the daughter named in the will was one of the heirs at law, hold, that heirs at a particular time were intended. My opinion is, that there is not enough in this will to give the words any other than their prima facie construction:heirs at law at his own death. If so, it would be a vested interest in the persons answering that description at his own death. I have not put this construction upon it in order to avoid the difficulty, that would otherwise arise: but I am very glad, that this relieves me from the necessity of stating, who are meant by the words "heirs at law" as to the property, which is the subject of this bequest. This is personal property; and it is said, that though "heirs, &c.," have a definite sense as to real estate, yet as to personal estate it must mean such person as the law points out to succeed to personal property. I am much inclined to think so. If personal property was given to a man and his heirs, it would go to his executors. I rather think, if I was under the necessity of deciding this point, I must hold it heirs quoad the property: that is, next of kin: but I am relieved from that; as, if heirs, at his death are meant, they are the same persons; the three daughters being both heirs and next of kin; and if they did not take as heirs at law, they took an absolute interest in themselves in the personal estate. Great difficulties would arise from the construction, that heirs at law are intended, and applying it to personal property. He might have different heirs at law: heirs descending from himself as first purchaser: heirs ex parte paterna and ex parte materna. I am inclined to think, the court would in such a case consider him as the first purchaser; so as to take in both lines. However, there is no occasion to say anything upon that.

Declare, that the words "heir or heirs at law" in this will must be taken to mean heir or heirs at law at the time of the testator's death; and that the sum of £4000 vested in his three daughters.1

1 Accord: Abbott v. Bradstreet, 3 Allen (Mass.) 587; Dove v. Torr, 128 Mass. 38; Kellett v. Shepard, 139 Ill. 433, 28 N. E. 751, 34 N. E. 254; Brown v. Brown, 253 Ill. 466, 97 N. E. 680; Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920; Winn, In re Brook [1910] 1 Ch. 278.

The same result is reached when the ultimate gift is to the "next of kin"

of the testator. In re Trusts of Barber's Will, 1 Sm. & G. 118; Lee v. Lee, 1 Dr. & Sm. 85.

In Allison v. Allison [1910] 1 Ch. 278, the next of kin at the testator's death took, although the gift to such next of kin was contingent upon their surviving the life tenant, who was one of the six next of kin at the testator's death.

In some cases an additional and special context tending to show that "heirs at law" meant those who would have been the testator's heirs at law if the testator had died at the time of the death of the life tenant was held insufficient to change the primary meaning of the words. Brown v. Brown, 253 Ill. 466, 97 N. E. 680; 8 Ill. Law Rev. 121; Abbott v. Bradstreet, 3 Allen (Mass.) 587.

A fortiori, where the life tenant is not one of the heirs at law or next of kin of the testator at his death, the ultimate gift to the testator's heirs at law or next of kin, as the case may be, means primarily those who answer that description at the testator's death. Doe dem. Pilkington v. Spratt, 5 Barn, & Adol. 731; Whall v. Converse, 146 Mass. 345, 15 N. E. 660. In the latter case Holmes, J., said (146 Mass. 348, 15 N. E. 662): "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. Dove v. Torr, 128 Mass. 38, 40. Minot v. Tappan, 122 Mass. 535, 537. Abbott v. Bradstreet, 3 Allen [Mass.] 587. 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 toward a construction which vests 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."

In Smith v. Winsor, 239 Ill. 567, 88 N. E. 482, interests were devised by a husband to his wife for life, with a remainder to the testator's heirs at law. By the third clause of his will the testator "in case his wife survived him" devised to his wife for life and then to the testator's heirs at law. By the fourth clause he provided in the alternative "in case my wife shall not survive me," then to the testator's heirs at law. "Heirs at law" in the fourth clause necessarily excluded the wife. "Heirs at law" meant the same thing in the third clause that it did in the fourth and therefore it excluded the wife in the third clause. See also, Sears v. Russell, 8 Gray (Mass.) 86. NOTE ON THE MEANING OF HEIRS AT LAW OF THE TESTATOR IN A GIFT TO SUCH HEIRS WHERE THE SUBJECT OF THE GIFT IS PERSONAL PROPERTY ALONE, OR A MIXED FUND OF REAL AND PERSONAL PROPERTY.-Where personal property alone is bequeathed to heirs at law, those take who are entitled to personalty on an intestacy. Alexander v. Masonic Aid Assn., 126 Ill. 558, 18 N. E. 556, 2 L. R. A. 161; Clay v. Clay, 63 Ky. (2 Duv.) 295; Lawton v. Corlies, 127 N. Y. 100, 27 N. E. 847; Ashton's Estate, 134 Pa. 390, 19 Atl. 699; Kendall v. Gleason, 152 Mass. 457, 25 N. E. 838, 9 L. R. A. 509.

Where a blended fund of real and personal property is devised to the trustee's "heirs," heirs has that meaning as to the whole fund which it has when applied to real estate alone. Allison v. Allison, 101 Va. 537, 44 S. E. 904, 63 L. R. A. 920; Commonwealth v. Crowley, 167 Mass. 434, 45 N. E. 766; Heard v. Read, 169 Mass. 216, 47 N. E. 778; Schouler on Wills (5th Ed.) §§ 522, 547; 2 Jarman on Wills (5th Am. Ed.) *62, *82. But see Rawson v. Rawson, 52 Ill. 62.

WARE v. ROWLAND.

(Court of Chancery, 1847. 2 Phil. Ch. 635.)

Philip Slater, by his will dated the 18th of July 1806, directed his executors to purchase, in the 3 per cent. reduced annuities, the sum of £600 a year, upon trust to permit his wife to receive the said annuity for her life, and after her death in trust for his daughter Anna Maria Slater; and after her death, to distribute the principal amongst the children of his said daughter, at their respective ages of twenty-four years, with maintenance in the meantime; after which the will proceeded as follows:-"If at the death of my said daughter she should leave no child or children living, or in the event of such child or children dying under twenty-four, then I direct my trustees to sell the said principal fund, and to pay thereout to my son-in-law J. G. Christian, and my grandson G. T. Rowland £500 each, if they should severally be alive at that time; and all the rest and residue of the said principal fund, with the interest and dividends, I give and bequeath to and amongst my heirs-at-law, share and share alike." In a subsequent passage of the will the testator gave the residue of his property to his daughter Anna Maria Slater by name.

Anna Maria Slater was the only surviving child of the testator at the date of his will, and she was also his sole heiress-at-law, and next of kin at the time of his death. Upon her death, in the year 1844, without having married, the heirs-at-law of the testator were Philip Slater Fall and Isaac Hodgson Wilson, two of his great-nephews, grand-children of his two sisters; and his next of kin at the same time was Jemima Brune, a daughter of one of those sisters.

On the death of Anna Maria Slater, the principal fund set apart to answer the annuities, consisting of about £20,000 stock, was contested between three parties, the personal representative of Anna Maria, as the sole heiress-at-law and next of kin of the testator at the time of his death; Fall and Wilson, as his co-heirs-at-law at the death of Anna Maria; and Jemima Brune, as his sole next of kin at the same period. The Vice-Chancellor of England having decided in favor of the first, the other two parties presented separate appeals, which came on to be argued together.

The LORD CHANCELLOR [LORD COTTENHAM]. If Holloway v. Holloway, 5 Ves. 399, lays down the rule correctly, there can be no doubt of its governing this case. In that case, as in this, the testator had a daughter, to whom he gave the interest, for life, of a sum of money which he directed should be taken out of his general estate and invested. In that case, as in this, after the daughter's death, her children, if any should be living at the time of her death, were to have the fund, and if she left no children, part of the fund in Holloway v. Holloway was to be held in trust for the personal representative of the daughter; and the remainder of the fund in trust for such person or