JAMES E. BAGLEY, JUNIOR, administrator, vs. GRACE L. KUHN & others.

LUMMUS, J. This is a petition for instructions as to the meaning of the will of George H. Kuhn, late of Boston, which was proved and allowed in the Probate Court for the county of Suffolk on March 31, 1879.

At the death of the testator there were living three grandchildren: George K. Clarke, born in 1858, and Martha Anna Clarke, born in 1862, the children of the testator's daughter Martha Anne Clarke, who died in 1891, and

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Grace L. Kuhn, born in 1872, the child of the testator's son William P. Kuhn, who died in 1896.

The testator directed his executor to deposit with the Massachusetts Hospital Life Insurance Company $200,000 for his daughter Martha Anne Clarke, the income to be paid to her for life, and at her death the principal to be equally divided among her children then living, the portion of a son to be paid to him, and the portion of a daughter to remain on deposit with said company and the income to be paid to the daughter for life. At the death of the daughter "I give said principal sum with the interest that may then be due thereon to her child, or children if more than one in equal portions and so to their respective heirs. If she shall leave no issue then I give the same to my heirs at law" (emphasis supplied).

Martha Anna Clarke, the daughter of the testator's daughter Martha Anne Clarke, died without issue on November 9, 1945. The property in question, by the will of the testator, was then to pass to "my heirs at law," meaning the heirs at law of the testator George H. Kuhn. The principal question is, whether those "heirs at law" are to be determined as of the date of death of the testator George H. Kuhn in 1879, or as of the date of the death of the equitable life beneficiary, Martha Anna Clarke, in 1945. At the earlier date, those heirs at law were the testator's children Martha Anne Clarke and William P. Kuhn. At the later date, those heirs at law were Eleanor Clarke Bowser, the daughter of the life beneficiary's brother George K. Clarke, and Grace L. Kuhn, the daughter of the life beneficiary's uncle William P. Kuhn. The decree of the Probate Court instructed the petitioner that the heirs at law of the testator George H. Kuhn are to be determined as of the date of his death in 1879, and that the fund is to be equally divided between Eleanor Clarke Bowser and the trustees under the will of William P. Kuhn. Grace L. Kuhn appealed.

The general rule of construction in cases like the present case has been settled in this Commonwealth at least since the case of Childs v. Russell, 11 Met. 16, decided in 1846.

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It is stated as a "well settled" rule in Abbott v. Bradstreet, 3 Allen 587, 589, decided in 1862. In Tyler v. City Bank Farmers Trust Co. 314 Mass. 528, 531, that general rule was stated thus: "In the accurate use of language, only those entitled to inherit at the death of another can be called his heirs. Accordingly, unless a contrary intention appears, a gift in a will to the heirs of a person, whether he be the testator or a life tenant or another, will be construed as a gift to such heirs determined as of the time of death of that person." The same general rule has been applied in a number of later cases. Old Colony Trust Co. v. Johnson, 314 Mass. 703. Loring v. Sargent, 319 Mass. 127.

But, as was recognized in the Tyler case (page 532), "The general rule will yield, however, where it appears that the testator used the word `heirs' in an inaccurate sense, to denote a hypothetical and artificial class composed of those who would have become heirs had their ancestor lived until some then future time, usually the time of the termination of some life estate, and the intention of the testator will be given effect." This exception was applied in Thompson v. Bray, 313 Mass. 717, Worcester County Trust Co. v. Marble, 316 Mass. 294, Taylor v. Albree, 317 Mass. 57, and McKay v. Audubon Society, Inc. 318 Mass. 482.

The appellant Grace L. Kuhn points out that the testator provided that the life interest of his daughter Martha Anne Clarke was to be "independent of any husband she now has, or may have at any time hereafter," and was not to be "liable in any contingency for his debts or obligations." She points out that by Gen. Sts. (1860) c. 94, Section 16, Fourth, if an intestate was a married woman her surviving husband succeeded to all her personal estate not needed for debts and charges of administration. See also Pub. Sts. (1882) c. 135, Section 3, Third. And she contends that it is unlikely, in view of the express exclusion of any husband of Martha Anne Clarke, that the testator intended to permit her husband to take by inheritance from her her interest as an heir of the testator in a vested remainder. A similar situation was presented in Jewett v. Jewett, 200 Mass. 310, 317, 318, where Sheldon, J., said, "The careful provision that the

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share of the income of the trust fund which was to be paid to her [the testatrix's] daughters or to their female descendants should be paid to them or for their benefit independently of their husbands does not warrant the inference that she wished to deprive her daughters of any interest in remainder lest they should exercise their unrestricted power of disposition by bequeathing it to their husbands."

We find nothing in the will that runs counter to the general rule that the heirs are to be determined as of the death of the testator. Those heirs at law were the testator's children Martha Anne Clarke and William P. Kuhn.

A further question arises as to the devolution of the half interest which, in the absence of issue of Martha Anna Clarke, passed into the estate of William P. Kuhn as one of the two heirs of the testator.

William P. Kuhn died in 1896, leaving a widow Mary R. Kuhn and one daughter, the appellant Grace L. Kuhn. By his will [Note 1], after some specific and pecuniary legacies, he gave all his property to trustees, in trust to pay the income to his widow (now deceased) and his daughter during their joint lives, and after the death of the widow to his daughter. At the death of the survivor of the wife and daughter the principal was to pass to the issue of the daughter then living, and in default of issue "to the heirs at law then living of my late father George H. Kuhn." It cannot be maintained that his will passed only property in the possession of William P. Kuhn when it was executed, or at his death, and did not pass subsequent interests. A construction resulting in partial intestacy is not to be adopted unless plainly required by the language of a will. Presumably a testator intends to dispose of all his property. Hedge v. State Street Trust Co. 251 Mass. 410, 412. Robertson v. Robertson, 313 Mass. 520, 525. Holmes v. Welch, 314 Mass. 106, 109. We do not agree with the contention of the appellant Grace L. Kuhn that she is entitled to half the fund in question as intestate property of the estate of William P. Kuhn. We think that the Probate Court was

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right in instructing the petitioner to pay half the fund to the trustees under the will of William P. Kuhn.

Costs and expenses of this appeal may be allowed in the discretion of the Probate Court.

Decree affirmed.