I concur in the opinion of the majority of the court with the exception of that part thereof which construes the last part of the twenty-second clause of the will of Hezekiah Anthony in connection with the seventeenth clause thereof as they relate to the disposition of the trust estate created by the last named clause upon the death of Helen Quinn, formerly Helen Cook. Construction of the clause first named becomes necessary because no part *Page 76 of the corpus of said trust estate was transferred to the life tenant during her life, as was possible by the terms of the said will.
The last part of the twenty-second clause of the will is quoted in the majority opinion and need not be here repeated.
The seventeenth clause is as follows: "I give, devise, and bequeath to Sarah Ann Cook, in trust for Helen Cook, widow of Enos A. Cook, the sum of five thousand dollars, and also the house and land where said Enos A. Cook formerly lived, on Almy Street, in Fall River, Commonwealth of Massachusetts; to have and to hold the same to her, the said Sarah Ann Cook, her heirs, executors, and administrators, for the use and benefit of Helen Cook, widow of Enos A. Cook, her heirs, executors, and administrators, with power to manage the same generally, and, if need be in her opinion to sell the same and reinvest the proceeds thereof, and with power to change the investment thereof whenever in her opinion it shall seem best, and with power also to convey said real estate to her, her heirs and assigns, at any time when she may think proper, and with power to pay over to her said money or any part thereof, according to her discretion."
In Cook v. Dyer, 17 R.I. 90, this court in construing clause seventeen held that Helen Cook took an equitable life estate thereunder. The simple question of construction now presented is, — Who were the persons meant and pointed out as beneficiaries by the following words of the twenty-second clause, "my will is that the trustee holding such property shall on such decease pay and convey the same in fee simple, discharged of all trusts, to the persons who by the laws of the State of Rhode Island would inherit it had the persons for whose benefit it was so given died seized and possessed thereof in fee."
In construing a will the words should be given their ordinary and usual significance. But where technical words are used they are presumed to be used technically and they will be so construed unless a clear intention to the contrary is apparent from the context. 40 Cyc. 1396, 1398. The *Page 77 word "inherit" is of course a technical word and used technically means "to take property by descent as an heir." Anderson Law Dict. The word "heir" is also a technical term, in strictness, meaning "one born in lawful matrimony who succeeds by descent and right of blood." Richardson v. Martin, 55 N.H. 47; or, as stated in Richards v. Miller, 62 Ill. 422, "an heir is one who inherits," showing that in the present case "the persons who" . . . "would inherit it" are identical in meaning with the word "heirs." Strictly speaking the words "inherit" and "heirs" are words used in respect to real estate only. It is unquestionably true, however, that courts have not hesitated to subordinate the language to the manifest intention of the testator and in so doing, if necessary, will give a secondary and untechnical meaning to technical terms. The words "inherit" and "heirs" have both been interpreted in a secondary and untechnical sense, the latter the more frequently than the former, because the occasions for its construction by courts have been the more numerous.
It is urged in the present case that the word "inherit" should not be interpreted technically, but in the sense of "take" or "have." The claim is based upon the fact that in the inception of the trust, part of the estate was personal property and as to this the word "inherit" would have no strict application since no one could inherit personalty. Attention is also called to the provision of the will authorizing the trustee to sell the real estate and that therefore the testator contemplated the conversion of realty into personalty during the life of the life tenant, in which case the word "inherit" would have no applicability in a technical sense, and that as a matter of fact the real estate had been converted into personalty when Helen Quinn, formerly Helen Cook, died. In other words, the complainant claims that the nature of the property disposed of shows that the testator, at the death of said Helen, did not intend to give it to her heirs, but to those entitled to take her personal estate upon her dying intestate. *Page 78
The nature of the property disposed of is well recognized as something to be considered in interpreting wills when by fair construction a question has arisen as to what persons were entitled as beneficiaries by the language employed in the will to designate them.
Practically all the reported cases pertinent in the present case relate to the construction to be given to the word "heirs" when applied to real estate and personal estate included in the same gift. Under clause seventeen of Hezekiah Anthony's will, both real and personal estate, were given to the trustee and the words of clause twenty-second are applicable to the whole of such estate as might be in the trustee's possession and control at the time of the death of the life tenant.
The rule of interpretation applicable in such cases is stated in 1 Roper on Legacies, p. 93: "It being always a question of intention as to the meaning of the testator in the use of the word `heirs,' if it appear that the intent was for the heir, properly and technically such, to take the personal estate, there can be no objection to his title. An instance of that intention may occur when a testator blends his real and personal estates together; and, after giving the fund to a person for life, directs that his next heir-at-law shall afterwards succeed to it. In this case, the intention that both estates should be enjoyed together is apparent, and to divide them by giving the one to the next of kin would be contrary to the words; consequently, a court of equity has no alternative but to adhere to the description in the will, and to permit the person answering that description, viz.: the heir-at-law, to enjoy the whole."
So in Kent's Com., Vol. IV, 537, note (12th ed. Holmes:) "But if real and personal estate be devised, after a life estate, to the heirs-at-law, both the next of kin and the heir-at-law cannot take, if it appears both descriptions of property were to go together; and then the heir will take the whole."
And in 2 Redfield on Wills, 63: "But where real and personal estate is blended in the same bequest, there seems an inconsistency in giving the word `heir' or `heirs' a *Page 79 different import with reference to the different subject-matters combined in the same general disposition. This difficulty is referred to in some of the earlier cases. But the question was thoroughly reviewed, and all the cases bearing on this point considered, in the case of De Beauvoir v. De Beauvoir, and the rule fully established that in all such cases the word `heir' or `heirs' must receive its natural and ordinary import and construction."
There are many decisions in support of this view. The leading English case is De Beauvoir v. De Beauvoir, 3 H.L. Cas. 524. There a testator gave "all my estate in the funds of England and all my said manors" unto three persons in succession, and their sons successively in tail male, "and for default of such issue I give and devise the same to my own right heirs forever." The Lord Chancellor, on page 550, says: "That question is, who is the person to take? Till you ascertain who that person is, the only remaining question is, did this testator, or not, mean that the same persons who took the real estate should take the personal estate? It does not matter whether he is described as right heir, or whether he belongs to the class of legal right heirs, if he is the person and the only person who can take, supposing the real and personal property are to go together as a blended fund. The moment you ascertain that the heir-at-law, at the death of the testator, is the person entitled to the real estate, you ascertain at the same moment, assuming the intention, that the same person is to take the personal estate as personadesignata" and on page 552, he says: "It is said that the effect of this construction will be to give to the two words two senses. It does no such thing. It gives to the right heir two descriptions of property, but in one sense. The fact that the testator's right heir is to take both properties, involves no difference of sense at all. One class of this property he does not take in the character of right heir, but, being the right heir, he takes it as a gift under this will. It is perfectly clear that, if the personal property is given to him expressly, he will take it. The words are not used *Page 80 in two senses, but they are used in one sense, to carry both properties according to the intention." See, also, Haslewood v.Green, 28 Beav. 1; Gwynne v. Muddock, 14 Ves. 488, andSmith v. Butcher, 10 Ch. Div. 113. This rule of interpretation is adopted by the courts of last resort in many states. In Allison v. Allison, 101 Va. 537, the testator gave all the residue of his estate, real, personal and mixed to his executor in trust for a daughter during her natural life and at her death to be divided among her children should any survive her, but if she should die without issue or if her child or children should die before becoming of age "then the property bequeathed for the benefit of my daughter is to be divided among my heirs-at-law according to the laws of the State of Virginia." The estate was a large one and included real and personal estate. After considering the point at length as to the meaning of the words, "heirs-at-law" and discussing authorities, the court says: "We are content to accept the law as declared by the English Court of Chancery, the Supreme Court of Massachusetts and the eminent text-writers from whom we have quoted. We are, therefore, of opinion that, as the residuary clause of the will blends real and personal estate and gives it to the heirs-at-law of the testator, the persons answering that description should enjoy the whole, there being nothing to indicate a contrary intention on the part of the testator."
In Mason v. Baily, 6 Del. Ch. 129, the testator had divided the rest, residue and remainder of his estate, real, personal and mixed, whatsoever and wheresoever the same might be into six equal parts. He gave one of these equal one-sixth parts to S. "in trust to pay the dividends and rents accruing thereto" . . . "to her sister, my daughter, Ann Elizabeth Grimshaw, for and during the term of her natural life," and upon her death to convey the same as the said Ann might by her last will direct, and "on the failure of such last will or testament or instrument, then to convey the same to the right heirs of the said Ann Elizabeth Grimshaw, their heirs and assigns forever." The fourth item of *Page 81 the will was as follows: "I authorize and empower my executors hereinafter named or the survivor of them, should it be deemed necessary, in making distribution of my estate according to this my will, to sell and convey any or all of my estate, either at public or private sale, for the best price that can be obtained, and deed or deeds in fee simple to the purchaser or purchasers thereof, or other conveyances or transfers to make, execute and deliver." There was no proof of the nature, character, and description of the property and estate of the testator at the date of his will. At his death he owned two burial lots and a considerable personal estate. The Chancellor considers the meaning of the words, "heir," "right heirs," and "heir-at-law" at great length in an elaborate opinion in which many cases are cited and discussed and says, p. 158: "There is nothing in the context or any part of the will to show that by the words `right heirs' of his daughter he meant any other person or persons than those who were technically such," and "The question in this, as in every similar case, is this: Is the person described, described as persona designata or not? The question is, who is the person to take? It does not matter whether he is described as right heir, or whether he belongs to the class of legal right heirs, if he is the person and the only person who can take supposing the real and personal property are to go together as a blended fund." . . . "In all cases, whether the gift is immediate or in remainder; whether it is of personal estate or of a mixed fund of real and personal estate, — the question simply is whether there is such a description on the face of the will as amounts to a designatio persona and enable you to give to a person not filling the character in which he would be entitled to take it by law the property which the testator bequeathed to him." Held, that the entire equal sixth part went to the heirs of said Ann. See, also, Hackney v. Griffin, 59 No. Car. 381, 383, and Gordon v. Small, 53 Md. 550, 561.
The rule of interpretation above set forth has been applied in Massachusetts in numerous cases, as for example, Clarke *Page 82 v. Cordis, 4 Allen, 466; Lombard v. Boyden, 5 Allen, 249;Fabens v. Fabens, 141 Mass. 395; Lincoln v. Perry,149 Mass. 368; Proctor v. Clark, 154 Mass. 45; Olney v.Lovering, 167 Mass. 446; Heard v. Read, 169 Mass. 216;Rand v. Sanger, 115 Mass. 124; Holbrook v. Harrington, 16 Gray, 102, and Gray v. Whittemore, 192 Mass. 367.
In Lincoln v. Perry, supra, the testator who was born and lived awhile in New Hampshire, but was domiciled in Massachusetts when he executed his will and thenceforth until his death in 1877, gave one-fourth part of the residue of his estate, consisting of personalty in Massachusetts and of land in New Hampshire, to his brother's wife who was domiciled in New Hampshire with her husband and there died in 1894, "to have and to hold the same to her during her life and at her decease to her heirs-at-law and their heirs and assigns forever." The plaintiff was appointed trustee under the will in each state. There was no power to sell given in the will. By proper authority the trustee sold, in 1881, the real estate in New Hampshire for three thousand dollars; the personal property in Massachusetts, amounting to thirty-five thousand dollars, had never been invested in real estate, and after 1881 the whole property in question had been personal property. The question was as to who was entitled to take the property in Massachusetts under the designation "heirs-at-law." The court said: "The testator has appointed a common destination for all of said fourth part of the residue of his property, whether the same is real or personal. The words should not be construed to mean that the real estate should go to one set of persons, and the personal estate to another; but the whole residue must go to the heirs, according to the meaning which that word bears at common law, namely, those who would be entitled to succeed to real estate in case of intestacy."
The rule applicable to these cases is stated in 40 Cyc. page 1464, as follows: "Where the gift consists of both real and personal estate, the word `heirs' will ordinarily be construed as legal heirs or heirs-at-law as to the real estate, and *Page 83 as next of kin or distributees as to the personal estate; but where the gift is directly to the heirs of a certain person as a substantive gift to them, and there is no indication that more than one class is intended or that the two kinds of property are to go in different directions, the whole property, both real and personal, will go to the heirs-at-law." In the note seven cases are cited as supportive of the statement that "heirs will ordinarily be construed" technically as to the realty and as next of kin or distributees as to the personalty. A careful examination of the seven cases cited shows that the decisions in four of them do not support the statement of the text. Three of the four, namely, Fabens v. Fabens, Hackney v. Griffin, andAllison v. Allison, are cited above. Ingram v. Smith, I Head (Tenn.), 411, relates only to personal property. Of the other three cases two are English cases, Wingfield v.Wingfield, 9 Ch. Div. 658, and Keay v. Boulton, 25 Ch. Div. 212, in the former of which real estate and personal property in trust was to be divided among "brothers and sisters then living or their heirs," and in the latter case among children "as may be then surviving or their heirs," in which the word "heirs" is held to have a two-fold meaning, namely, "heir-at-law" as to real estate and "next of kin" as regards the personalty. The distinction between these cases and the cases of which DeBeauvoir v. De Beauvoir is a type is not readily obvious unless the distinction is based on the fact that in them the gift was substitutional or in succession and in the latter case it was substantive.
In Howell v. Gifford, 64 N.J. Eq., 180, which is the third case cited, there was a similar ruling where the will provided that if a child died without living issue him surviving the share of the deceased child was to be paid "his heirs or legal representatives," the court plainly basing its decision upon the use of both terms "heirs" and "legal representatives." In the latter case the executors were authorized to sell the realty, but were not required to do so. It is possible that other cases of this kind exist, but they are to be regarded as exceptional in face of the authorities already cited. *Page 84
It is a well established rule of interpretation of wills as affected by the nature of the property that the word "heirs" as applied to personalty primarily means next of kin or those persons who would take under the statutes of distribution in case of intestacy. And this rule applies when the will directs realty to be sold and the proceeds paid to the heir. 40 Cyc. 1464. The reason of this rule as applicable to the proceeds of real estate sold is that the testator equitably converts the realty and plainly intends that it shall go to the beneficiaries as personalty. But this suggests a question as to what effect a power of sale given to a trustee, but optional with him as to its exercise, has upon the interpretation to be given the word "heirs" when realty and personalty are included in the gift and also as to what effect the exercise of the power converting realty to personalty will have. In the five Massachusetts cases,supra, namely, Fabens v. Fabens, Olney v. Lovering, Heard v. Read, Proctor v. Clark, and Gray v. Whittemore, the trustee was given power to sell real estate, but not directed to do so; and in two of the five cases considered, Olney v.Lovering and Gray v. Whittemore, the trustee exercised the power to sell and converted the realty into personalty; but in each case it was held that the entire property would go to the heirs and not to the distributees or next of kin.
These matters are very thoroughly considered in Gray v.Whittemore, supra, decided in 1906. The testator gave the residue of his property, consisting of real and personal estate to trustees who were to pay the income thereof to beneficiaries for life and at the expiration of the life interests they were to pay and transfer the whole property to the heirs-at-law of a deceased son or daughter. He also gave his trustees authority as follows: "And I hereby empower my said trustees and their successors, to sell and convey any or all of said trust property; discharged of the trusts, and without obligation upon the purchasers to see to the application of the purchase money; and the proceeds shall be held upon the same trusts." In determining who were the persons *Page 85 entitled to take under the designation heirs-at-law of said deceased child, the court says: "It is necessary also to determine who are the persons entitled to take under the designation `heirs-at-law' of deceased children." . . . "We think it manifest that by these words, in the connection in which they are used, the testator intended to designate those who under the law of this Commonwealth would inherit the real estate of the person whom they represent. This case comes under the rule ofClarke v. Cordis, 4 Allen, 466, and Lombard v. Boyden, 5 Allen, 249, in which it was held that where real and personal estate are included in a single provision, by which the income is to be paid to life tenants, and at the expiration of the life estates the trustees are to pay and transfer the whole property to the legal heirs either of the testator or of one of the life tenants, there being no indication that more than one class is intended or that the two kinds of property are to go in different directions, the whole property will go to those who are technically described as heirs." Numerous cases are cited. "In the cases in which, under somewhat similar circumstances, the word `heirs' has been construed to have other than its common law meaning, so as to include those who would take personal property, either alone or together with heirs strictly so-called, it generally will be found either that the fund consisted wholly of personal property, or that any real estate included therein was directed by the testator to be converted into personal property, or that the decision turned upon what was found to be the particular intention of the testator." Five Massachusetts cases showing this are cited all of which are also cited in complainant's brief and in the majority opinion. The court further says: "It remains to be determined whether the proceeds of real estate originally held in the trust fund, but sold and changed into personal property by the trustees before April, 1898, in accordance with the power given to them by the will, should be treated as real estate. It is to be observed that the will does not direct that the real estate be converted into personal, but simply *Page 86 gives the trustees power to sell and convey and to make new investments; and this has been already found to be a circumstance of weight in determining the construction of the words `heirs-at-law.' If the conversion had been directed by the testator, or if he had contemplated the making of such a conversion before the taking effect of his final limitations, the proceeds of the real estate would be treated as personal property. But where as here there is a mere power to change investments, the fund resulting from a sale of real estate retains its original character until it reaches one who has the right to treat it as his own absolutely and for all purposes. Accordingly, we are of opinion that the proceeds of the realty originally forming part of the trust estate are to be treated as realty in making distribution of the trust fund until the final vesting of the right to them in the parties ultimately entitled." See, also, Holland v. Cruft, 3 Gray, 162; Holland v.Adams, 3 Gray, 188, and Hovey v. Dary, 154 Mass. 7.
In Holland v. Cruft, supra, Chief Justice Shaw says (p. 180): "The principle therefore appears to be fully settled, both upon well considered reasons of justice and expediency, and upon a series of authorities, that where land is devised as real estate, and either by the direction of the testator himself, or by operation of law, such real estate is converted into money for the purpose of better investment, or for any other purpose consistent with the design and purpose of the ultimate destination to which the real estate was appropriated, there the money is substituted for, and stands in the place of the devised real estate, and shall go to the same persons and in the same proportions, and vest in possession and enjoyment at the same times and upon the same contingencies, which would have affected the real estate, had it remained specifically in real estate."
In Holland v. Adams, supra, he also says (p. 191): "As a general rule to be deduced from the cases, we think that in case of such conversion of real into personal estate, to stand in place of the real, as more beneficial to the parties, without *Page 87 changing the beneficial destination, the character thus impressed on the money will attach to it, until it reaches one who, if it had remained real estate, would take it beneficially."
In Hovey v. Dary, supra, the court says (p. 10): "Where executors or trustees are directed to convert real estate into personal, it will more readily be inferred that the proceeds of such realty are to be held as personal property than where power and authority merely are conferred upon the executors thus to change investments. In the former case the direction shows, or tends to show, that the testator has contemplated and understands the change that may be made in the rights of various parties by the change in the form of the property, while in the latter case it is less easy to suppose that he has confided to another the right and power to determine at his own discretion whether the descent or devolution of the property shall be changed by the new form which the property may assume by reason of the sale." See, also, Scholle v. Scholle, 113 N.Y. 261.
In Rhode Island Hospital Trust Co. v. Harris,20 R.I. 408, where trustees were given a general power to sell and dispose of the trust estate at public auction or private sale and exercised the power by selling real estate, the court says: "We are of the opinion that as the real estate was sold by the trustees subsequently to the death of the widow, not in pursuance of any direction by the testator, but merely for the purposes of the trust, its proceeds are to be treated as real estate and are to be distributed among the persons who would have been interested in the real estate had it not been sold." See RhodeIsland Hospital Trust Co. v. Harris, 20 R.I. 160, for terms of will and decision upholding validity of the sale of such real estate by the trustees.
All of the cases cited by the complainant in his brief as supportive of his claim are cases where the property disposed of was either personalty or realty expressly directed by the testator to be converted into personalty, or where the intention of the testator as to such conversion for the purpose of *Page 88 final distribution was clear, although the conversion was not expressly ordered. No case is cited where the power to sell real estate by the trustee is optional and is simply a power to change investment, whether the power be exercised or not, which upholds the complainant's claim, and after a somewhat diligent search I have discovered none.
I therefore find no good ground in reason or authority for not following the rule set forth in Gray v. Whittemore,supra. In this case there is nothing to indicate that either by giving the trustee "power" . . . "if need be in her opinion, to sell the same and reinvest the proceeds thereof and with power to change the investment thereof whenever in her opinion it shall seem best," or by the exercise of such powers the testator intended to change the ultimate destination of the gift or that he intended to confide in the trustee the right and power to determine at her discretion whether the devolution of the property should be changed as a result of changing its form by the sale thereof. On the contrary, it seems the more reasonable to conclude that these powers "to sell and reinvest" and "to change the investment" whenever it might seem best to the trustee, which naturally includes the power to invest wholly in realty or wholly in personalty, or partly in each, were given simply for the purpose of enabling the trustee to manage the trust estate in the most beneficial manner. Under these conditions the words "persons who by the laws of the State of Rhode Island would inherit" should, in my judgment, be given their technical meaning as the equivalent of "heirs." To state it otherwise the words are used in their strict sense as personadesignata to point out the beneficiaries of the gift. This interpretation is strengthened by the use of the words "pay and convey the same in fee simple" and the words "and the persons . . . dying seized and possessed thereof in fee." Of course by "the Statutes of Rhode Island" the complainant is not an heir of Helen Quinn and cannot inherit from her. Accordingly he takes nothing under the will of Hezekiah Anthony and has no interest in the property in *Page 89 question. On this ground the complainant's appeal from the decree of the Superior Court in sustaining the respondent's demurrers and in dismissing the bill should be denied and dismissed, and the cause be remanded to the Superior Court for the entry of a decree in accordance herewith.