In Shirley v. Healds, 34 N.H. 407, it was shown to be well settled that a party has a right to appeal from the decree of a judge of probate, whose rights and interests are necessarily affected by the decree, whether the rights affected are those which he has in a personal or representative capacity. And it was there held that the person named as executor has sufficient interest in the estate of a testator to give him a right, under the statute, to claim and prosecute an appeal from a decree of the judge of probate refusing to admit the will to probate.
The ratio decidendi of that case, and the authorities referred to in the opinion of the court, I think clearly establish the plaintiff's right to appeal in the present case.
The second and most important question is, whether Anna M. Martin takes under the will of William Plummer, as heir to her husband, John D. Martin; and I think she does not. It is undoubtedly true, that, if a clear intention of the testator to bestow his bounty upon her could be gathered from the terms of the will, the word heirs might well enough be regarded as designatio personae, and the court would *Page 47 give effect to such intention, although the term used be not strictly and legally correct to describe the person intended. Goodright v. White, Wm. Bl. 1010; Carne v. Roch, 7 Bing. 226; Morton v. Barrett, 22 Me. 257.
But it is to be observed that, while there is nothing whatever in the present will to show any such intention on the part of the testator, the use of the term legal heirs would seem to indicate, on the other hand, that the distinction was in his mind, and hence to denote a contrary intention. Besides, the subject-matter is real estate and the income arising out of real estate, and this circumstance alone is, perhaps, sufficient to make our decision consistent with that of the Massachusetts court, in Sweet v. Dutton, 109 Mass. 589, and the reasons, as given by CHAPMAN, C.J., upon which that decision is placed. However that may be, I think, upon so much of the will as is before us, it is impossible to hold that the testator here used the word heirs in the sense of distributees.
I do not see upon what principle the court can set aside one class of beneficiaries, clearly and distinctly designated in the will by an appropriate and accurate description, and substitute another not coming within the legal or popular import of the words there used. See Gen. Stats., chaps. 183, 184. As to the income which had accrued prior to the death of John D. Martin, I am of opinion that must be treated as having vested in him, and as being assets in the hands of his administrator.
SMITH, J. 1. Upon the question of the right of the executor to appeal, the case of Shirley v. Healds, 34 N.H. 407, is decisive. In that case it is said that "it may be regarded as well settled that a party has a right to appeal whose rights and interests are necessarily affected by the decree, whether the rights affected are those which he has in a personal or representative capacity." To the same point are Smith v. Sherman, 4 Cush. 411, and Smith v. Bradstreet, 16 Pick. 264.
2. There is nothing in the will of William Plummer to show that the word "heir" is not to be understood in its ordinary sense. In its ordinary sense it is understood to mean one born in lawful matrimony, who succeeds by descent and right of blood. Bouv. Law Dic. The Gen. Stats., in defining what share or portion in her deceased husband's estate the widow shall receive, nowhere speak of or include her with his heirs or next of kin. She rather takes by virtue of her status as widow, and under no other name. If she is to be classed with and considered one of his heirs, the question might arise whether it would not follow that she would be liable on the covenants of her husband in which he was specially bound, equally with an heir on the covenants of his ancestor, yet I think it never has been claimed that she is so liable.
Without further discussion of this question, I think it is clear that Anna M. Martin cannot take as heir to her husband any part of his share in these two legacies. Such portion of the income as accrued prior to his death is payable to his administrator, before the final *Page 48 settlement of his estate. She will, as his widow, be entitled to such share of the balance remaining in the administrator's hands as the statute provides.
Decree accordingly.