FRANCIS PEABODY, JR., trustee, vs. HARRIET F. COOK & others.

RUGG, J. This is a petition by the trustee under the will of Isaac Cook for leave to convert certain real and personal estate into cash, and to distribute the proceeds to such persons as may be entitled thereto under the provisions of the will. The trustees were directed, by the seventh and eighth clauses of the will, to hold certain real and personal property upon the trust, first to pay the income thereof to a grandson of the testator, William W. Cook, during his life, and to Frances A. Cook, his wife, if she survived him, during her life. The trust was to terminate upon the decease of the survivor of these two, and the trustees were directed as to the property held under clause seven to thereupon convey the estate "to and among the right heirs at law of said William W. Cook, agreeably to the statutes of Massachusetts regulating the descent of intestate estates, the issue of any deceased child taking its parent's share." As to the property held under clause eight, they were directed to

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distribute the property "to and among the right heirs at law of the said William W. Cook agreeably to the statutes of Massachusetts regulating the descent and distribution of intestate estates, the issue of any deceased child taking its parent's share." William W. Cook and Frances A. Cook both survived the testator, and subsequently Frances A. Cook deceased, having had five children by William W. Cook, three of whom are now living, the others having died without issue. Thereafter William W. Cook married as his second wife the appellant, Harriet F. Cook, who has borne by him two children, both now living, and who has survived him.

William W. Cook died within a year prior to the filing of this petition.

The question presented is whether the second wife, Harriet F. Cook, shares under the provisions of the will of Isaac Cook, or whether the property is to be divided wholly among the children of William W. Cook.

If the word "right" had been omitted from the clauses above quoted governing the final distribution of the estate, there would be no question but that the second wife would be entitled to share in the estate. R. L. c. 140, § 3, cl. 3, creates a surviving wife a statutory heir of a deceased husband, who leaves issue. It is true that by R. L. c. 132, § 1, the wife is given the right to waive her inheritance and claim her dower at common law, but we construe this statute to mean that the wife stands upon the same footing respecting the interest in the real estate of a deceased husband, where the deceased leaves a widow and issue, as she does where the deceased leaves no issue, in which event she is given at least $5,000 and one half the remaining real and personal estate. It has been repeatedly held that in the latter event the wife is a statutory heir. She is included among those who take real estate in fee in case of intestacy, which is the familiar definition of heir at law. Proctor v. Clark, 154 Mass. 45. Smith, petitioner, 156 Mass. 408. International Trust Co. v. Williams, 183 Mass. 173. Holmes v. Holmes, 194 Mass. 552, 559. Gray v. Whittemore, 192 Mass. 367, 381.

The only doubt arises from the presence of the word "right" before "heirs" in these two clauses of the will. These two

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words have been adverted to in Brown v. Wright, 194 Mass. 540, 645, and in Boston Safe Deposit Trust Co. v. Blanchard, 196 Mass. 35, but their meaning was not defined in either of these cases. The phrase "right heirs" has been before other courts in several instances, and has generally been held to mean the same as heirs at law. Guerard v. Guerard, 73 Ga. 506, 510. Balentine v. Wood, 15 Stew. 552. Brown v. Wadsworth, 168 N. Y. 225. Gordon v. Small, 53 Md. 550, 560. Sladen v. Sladen, 2 J. & H. 369. In re Ferguson, 24 Ont. App. 61. See 1 Washb. Real Prop. (6th ed.) § 150. In several English cases it has been said that the words "right heirs" mean the heirs at common law. Garland v. Beverley, 9 Ch. D. 213, 220. De Beauvoir v. De Beauvoir, 3 H. L. Cas. 524, 551. Owen v. Gibbons, [1902] 1 Ch. 636, 647. There is ground for argument that, applying the principle of the English cases to the present statutory provisions in Massachusetts in the light of the history of our statutes touching the determination of heirs of persons who decease intestate, the phrase "right heirs" means nothing more than statutory heirs. See also Mason v. Baily, 6 Del. Ch. 129; In re McCrea, 180 Penn. St. 81; Brown v. Wright, 194 Mass. 540, 545. A difficulty might arise in determining what the common law is (if that interpretation should be adopted) in view of primogeniture under English common law and its early abolition by statute in the Colony and Province, of which this Commonwealth is the successor.

But it is not necessary to determine whether the phrase under all circumstances necessarily is equivalent to legal heirs or whether it may sometimes have the meaning of heirs by the blood, or possibly some other significance, for it is manifest from the will now under consideration that the testator intended to have his estate distributed according to the statutes of descent. We need only apply the cardinal rule of will construction, which is to ascertain the intent of the testator and give it effect, unless prevented by some inflexible rule of law. Attributing to the phrase, "right heirs," standing by itself, the restrictive force claimed by the children of William W. Cook, it is altogether overborne by the emphatic, technically accurate and indisputably clear language of the will immediately succeeding the words, "the right heirs at law of William W. Cook,"

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namely, "agreeably to the statutes of Massachusetts regulating the descent of intestate estates." The testator thus makes plain his intention to incorporate into his will as a part of its terms the statute as to the descent of real estate of an intestate, as it might be at the time the will became operative. "Right" as descriptive of "heirs" is a word unknown in our statutes, which employ only heirs. If anything beyond the natural sense of the words of the will was needed to reach this conclusion, it is to be found in another portion of clause seven, where, after having provided for the conversion of the entire trust funds thereby created into personal property, in a certain event which did not arise, he proceeds to say that after the death of both Frances A. and William W. Cook the estate should be divided "to and among the right heirs at law of said William W. Cook, agreeably to the statutes of Massachusetts regulating the distribution of intestate estates," thereby recognizing the difference between the distribution of personal property and the descent of real estate, and specifically providing that such distribution should be according to the statute regulating distribution, although he still employs the phrase, "right heirs." "Right" becomes, in the light of the context in which it is used, at best an adjective of dignity or approval of the legislative determination of the persons who constitute "heirs."

As there is real estate devised by both clauses of the will, the whole property, both real and personal, will go to those who technically are described as heirs, there being no indication that more than one class is intended. Gardner v. Skinner, 195 Mass. 164. The decree of the Probate Court is reversed, and a decree should be entered giving one third of the estate to Harriet F. Cook, the second wife, absolutely, and dividing the rest equally among the five children of William W. Cook.

So ordered.