Rand v. Butler

Park, C. J.

The question in this case is, whether the expression “ to my heirs-at-law ” in the three devises and legacies in trust for Thomas Bradley, means the heirs-at-law *298 of the testator at the time of his own death or his heirs-at-law at the time of the death of Bradley. Those who contend for the latter construction claim that by clear implication Bradley is excluded from the class who take as heirs, although a grandson of the testator, and at the death of the latter his sole living issue and heir; for if he were to be in- ' eluded among the heirs-at-law he would, by his legal representatives, take the whole and exclude all other heirs; while the testator put the property given him under a trust for his life on account of his imbecility, and has also used the plural word “ heirs ” in each of the clauses in question, showing that he had in mind more than one heir.

In the case of Gold et ux. v. Judson et al., 21 Conn., 616 , it was held that to give to the word “ heir ” in a will a different construction from its usual and legal acceptation, the intention of the testator must be clear and decisive. According to this rule, the claim of the petitioners that Bradley should be excluded from consideration in ascertaining the heirs at the death of the testator, must fail, for there is nothing in the will that shows at all clearly that the testator gave to the word “heirs” a different meaning from that which the ¡word ordinarily imports. The fact that the propei’ty was put into the hands of trustees for the benefit of Bradley during his life, from which it may be inferred that he regarded him, as is found to have been the fact, as incapable of managing his own affairs, is clearly insufficient of itself. And it is not materially aided by the fact that he speaks of his heirs in the plural number, while Bradley was .his sole heir. This is the common mode of expression in wills. Hence, if this will should be so construed that the heirs must be ascertained at the death of the testator, the remainder would vest in Bradley as sole heir, and he would take the property to the exclusion of all others, and on his death the petitioners would have no interest in any part of the estate except the realty, which, being ancestral estate, all those of the blood of the testator may take by inheritance.

But if the heirs of the testator intended are those who *299 were such at the death of Bradley, the same result would be reached; for in that case the clauses of the will under consideration would be void by the statute against perpetuities, which declares that “ no estate in fee simple, fee entail, or any less estate, shall be given- by deed or will to any persons but such as are, at the time of making such deed or will, in being, or to their immediate issue or descendants.” Gen. Statutes, tit. 18, ch. 6, sec. 3.

Under this statute it has been held that any conveyance by devise, bequest or grant which may by possibility violate the statute, is void, whether it does so in fact or not. In the case of Jocelyn v. Nott, 44 Conn., 55 , the court say: “ All estates must vest during the lifetime of some person in being or the lifetime of the issue of some person in being.” And the same necessity exists by the common law, which requires that limitations by way of executory devise must be made to take effect after the death of the testator, during the life or lives of persons in being and twenty-one years afterwards, and any such devise which by possibility may not so take effect has been held to be void. Such is the common law of England, as also of Massachusetts and other of our sister states. Brattle Square Ghurch v. Grant et al., 3 Gray, 142 ; Sears v. Russell et al., 8 Gray, 86 ; Fosdick v. Fosdick, 6 Allen, 41 . °

It follows, therefore, that if a proper construction of the will requires that the heirs of the testator should be selected on the death of Bradley, the remainder over would be void, leaving Bradley to inherit the property.

• Hence we see that in either view of the case the petitioners can have no interest in- the personal property, of which the. estate is largely composed, and the realty, being ancestral estate, is open to them in actions at law, if they are of the blood of the testator and entitled to share in it.

We advise judgment in favor of the respondents.

In this opinion the other judges concurred, except Gran-, gbr, J., who dissented.'