WILKINS v. ORDWAY

Frink, for the appellant.

The testator left real estate of the value of $3,200, and personal property of the value of $70,436.11. By his will he specially devised his homestead farm, and directed the sale of all his other real estate, and its consequent reduction to personalty. He directed that one undivided half of his estate, after the decease of his daughter, Anna G. Wilkins, should go to the heirs of said Anna. She left a husband, Francis G. Wilkins, and two children. The question is, whether her husband takes as one of her heirs.

I. The estate to pass under this clause of the will is entirely personalty, if the executors have sold the real estate as directed. If not, the appraised value of the real estate was only $700, and is entirely distinguishable from the realty; — so that the question, in effect, is, Does the husband participate in the distribution of personal property under the term "heirs"? In our state, the husband succeeds to the estate of his wife in the same right and quantity as the wife would succeed to his estate if deceased. The husband then, is one of the distributees with the children. In a gift of personal property, the term "heirs" should be held primarily to refer to those who would be entitled to take under the statute of distribution. Sweet v. Dutton, 109 Mass. 591; Wigfield v. Wigfield, 39 L. T. (N.S.) 227; In re Steevens' Trusts, L. R., 15 Eq. 110; McKinney v. Stewart, 5 Kan. 384; Peacock v. Albin, 39 Ind. 25; Henderson v. Henderson, 1 Jones 221. The true construction of the term "heirs," to be gathered from these cases, must include the statutory next of kin (including the husband) as to the personal estate, and the heirs at law, as to the real estate.

II. The testator made a distinction between his real and personal estate in his will. This question arises in regard to the fund given in trust. That was entirely personalty. The testator's homestead was not encumbered by any trust, and his remaining real estate of the small value of $700 was to be sold by his executors before it passed into the hands of trustees.

III. We submit that the context of the will shows that it was the intention of the testator to include the husband as a beneficiary under this clause. If the term "heirs" does not receive the construction we ask for it, then it must be limited to the children of Anna G. Wilkins. The testator evidently had this distinction in mind; for the other half of the estate, in certain contingencies, was to go to her children, while this half was to go to her heirs. The fact that he uses the term children in other parts of his will, shows that he intended the word "heirs" should be more comprehensive, and include all who would by the statute of distributions succeed to her estate.

A. P. Carpenter, for executors, appellees.

The single question is, whether the husband is "heir" to the wife; whether the husband, upon the decease of the wife, takes under a devise to her for life and remainder to her heirs.

I. The question, upon reason and principal, ought not to be considered doubtful. That the husband has the same rights in the estate of his deceased wife that the wife would have in his, is provided by statute. G. L., c. 202, ss. 15, 16. Assume, however, that under the term "heirs" a widow or husband would take personal property, yet in this case there was a devise of both real and personal. The intention of the testator was plainly the same as to both, and if, in legal intendment, Wilkins cannot take an interest in the real estate under the term "heirs," he cannot take the personal. An "heir" is one who succeeds to property by right of blood. No one can be "heir" to another with whom he is not connected in blood. Husband and wife are not even of kin to each other. Neither could take under a devise to the "next of kin." G. L., c. 195, s. 2; Munsey v. Webster, 24 N.H. 126; Weeks v. Jewett, 45 N.H. 541, 542; Bouv. Law Dict., titles Heir and Kindred; 2 Kent Com. (4th ed.) 422; 4 Kent Com. (4th ed.) 536, note; 2 Jarm. Wills 49, note; 2 Bl. Com. 201-207, 247-257, 504-515; 2 Wms. Exrs. 1004; Dickens v. Railroad, 23 N.Y. 158. A widow no more takes her distributive share under the statute, as heir to her husband, than she takes her dower at common law. It belongs to her of right. She does not inherit it, and cannot, therefore, be disinherited. The plain distinction between her rights and those of an heir at law is maintained in all our statutes relating to estates of persons deceased. G. L., c. 203, especially ss. 1 and 6; G. L., c. 195, especially s. 2.

An "heir" is bound by his ancestor's covenants: will it be pretended that the wife is bound by the husband's covenants, or the husband by the wife's? Suppose, for example, that A conveys, with warranty to B, lands which he does not own, and dies leaving a large' property of which his widow takes, under the statute, one third, and his son, and only heir at law, the rest. Now if the son acquires title to said lands it passes at once, by estoppel, to B. Cole v. Raymond, 9 Gray 217, and many authorities passim. But suppose the widow buys the lands: will it be claimed that in that case the title passes to B?

The following are authorities in favor of our general position, and are decisive of the question. Clarke v. Cordis, 4 Allen 466; Lombard v. Boyden, 5 Allen 249; Loring v. Thorndike, 5 Allen 257; Esty v. Clark, 101 Mass. 36; Drake v. Pell, 3 Edw. Ch. 252. In the first three cases it was held that the word "heirs" is to be construed according to its common-law interpretation, and does not include those entitled to a share of the estate under the statute of distributions. In Esty v. Clark it was held that the wife is not a relation of the husband. (See the cases there cited.) In Drake v. Pell a devise was to nine children of the testator, not to vest until the youngest became twenty-one years of age. The will provided that if any child died before that time "the share of the child so dying shall go to the heirs, devisees, or legal representatives of the child so dying." Two of them died, one leaving a wife and children, and the other a husband and children. The court held that the children alone took in each case; that neither husband nor wife was entitled to anything. See, also, Prescott v. Carr, 29 N.H. 453; Wright v. Trustees, Hoff. Ch. 211-213; Murdock v. Ward, 67 N.Y. 387; Luce v. Dunham, 69 N.Y. 36.

II. A well settled construction of particular words and phrases will be adhered to, unless the testator plainly gave to them a different meaning. Hall v. Chaffee, 14 N.H. 218; Hawley v. Northampton, 8 Mass. 38. A testator is presumed to use technical words in their strict and technical sense, unless there is something in the context indicating that he has used them in a different sense: 2 Jarm. Wills 1; Campbell v. Rawdon, 18 N.Y. 417; Harvey v. Olmstead, 1 N.Y. 489; Mowatt v. Carow, 7 Paige Ch. 339; Cushman v. Horton, 59 N.Y. 149; Murdock v. Ward, 67 N.Y. 387.