This cause was begun by a bill in equity filed in the superior court by the trustee under the will of William P. Goodwin, late of the city of Providence in this state, deceased, against every person who, in his or her own right or as executor of a will or administrator of an estate, has an interest in the question of the proper construction of the fifth, sixth and seventh clauses of the first-mentioned will. The prayer of the bill is for instructions as to the manner in which the complainant as such trustee should now make distribution of the trust estate. When the pleadings were closed and the cause was ready for hearing for final decree, it was certified to this court for determination, under general laws 1923, chapter 339, sec. 35, now general laws 1938, chapter 545, § 7.
William P. Goodwill died May 14, 1921 in his sixty-ninth year, leaving the will in question, which was duly probated and the clauses now in question are as follows:
"Fifth: The rest, residue and remainder of my estate, real, personal or mixed, I give and bequeath to *Page 4 my said sister Sarah Jane Goodwin, but in trust nevertheless for the following purposes: viz. To hold such rest, residue and remainder of my estate in trust and to apply the income or use thereof to her own use and benefit so long as she is unmarried with full power to invest and reinvest the same and to sell transfer and deed any of the real estate included in this trust and thereby giving the purchaser a good title thereto and such purchaser shall not be charged with the duty of seeing to the application of the proceeds of any sale of any of the property belonging to my estate.
Sixth: Upon the day of marriage, or upon the death of said Sister Sarah Jane Goodwin, such part of any estate remaining under the trust created under clause Fifth of this will shall be divided amongst my legal heirs in accordance with the inheritance laws of Rhode Island.
Seventh: I hereby emphasize the fact that it is the paramount intent of this will to provide for the comfort or necessities of my said sister, Sarah Jane Goodwin so long as she lives unmarried even to the consuming of my estate, only intending to dispose of that which may remain after her marriage or death."
The facts are not in dispute. The testator's sister Sarah Jane Goodwin, who was named as executrix of the will, entered upon the performance of her duties as such and set up the trust estate provided for in the fifth clause. She acted as the sole trustee thereof until 1935, when on her petition the complainant was appointed cotrustee with her. He continued to act with her until her death, still unmarried, on December 24, 1938 and is now the surviving trustee. Upon her death it became his duty, under the sixth clause of the will, to divide the principal of the trust estate among the testator's "legal heirs in accordance with the inheritance laws of Rhode Island."
The main question which has arisen between the two groups of respondents, and as to which their interests are *Page 5 adverse to each other, is which of two possible meanings should be given to the above expression, "my legal heirs", as used by the testator in the sixth clause of his will.
By one of these possible meanings, which is advocated by one group, it signified his heirs in the technical legal sense of that term, that is, the persons who at the time of his death would be entitled, under the statute of descent of Rhode Island, to inherit his real estate of inheritance if he died intestate. It is contended by the other group that the testator used the words "my legal heirs" as meaning the persons who, when SarahJane Goodwin married or died, would be entitled, under the statute of descent, to inherit his real estate of inheritance, as his heirs, if he had died intestate immediately after the date of the marriage or death of said Sarah Jane Goodwin.
In shorter, though perhaps less technically exact language, the main question is whether the testator's language should be construed as meaning that his "heirs", among whom the trust estate was to be divided at the marriage or death of Sarah Jane Goodwin, should be determined as of the date of his death or as of the date of her marriage or death.
Counsel for those respondents who would fare better under the latter construction have also contended that, even if that construction be rejected, still at any rate the word "heirs" should not be construed as including the sister herself, because the result of that construction would be that her marriage or death would not merely terminate her equitable estate in theincome and use of the trust estate, but would also result in vesting in her or in her estate the legal title to a large share of the principal of what had been the trust estate. We shall consider this third possible construction of the sixth clause of the will after we have considered which of the two first mentioned possible constructions is the correct one. *Page 6
Whether a testamentary gift vests in interest immediately on the death of the testator depends on the intention of the testator. This intention, however, "is the intention testamentarily expressed; and when the testator uses familiar legal words, he must be presumed to have used them in their ordinary meaning, until the contrary clearly appears." (italics ours) Kenyon, Petitioner, 17 R.I. 149, 154, 163.
In the will before us the testator states that upon the death or marriage of Sarah Jane Goodwin he wishes what remains of his estate to "be divided amongst my legal heirs in accordance with the inheritance laws of Rhode Island." Nowhere in his will does the testator indicate that he used the word "heirs" in any peculiar sense different from the generally accepted sense of that term. Under such circumstances, we are not at liberty to assume that he must have used the word in a different and special sense merely because by such an assumption we would arrive at what may seem to be a more practical result than is reached if we permit the testamentary language to speak for itself.
Concerning the problem of determining the intention of the testator, it was stated in Harris v. McLaren, 30 Miss. 533, which statement was quoted with approval in Kenyon, Petitioner,supra: "We can only know that intention by referring to the language which he has employed, and to those associated circumstances which the law has declared shall indicate his wishes. The terms `lawful heirs', `right heirs', and `heirs' are synonymous; their significance is fixed by law; and when they are used in a deed or will without any superadded words or phrases, indicating a different meaning, they are always understood to be used according to their legal acceptation."
An heir is one on whom the local law of descent casts the inheritance on the ancestor's death; and, where a testator uses that word in his will, it is presumed, in the absence of aclearly indicated contrary intent in the will, that he used it *Page 7 in that sense. Goodgeon v. Stuart, 50 R.I. 6. And it has also been said by this court that: "Under the well established rules of construction the word `heirs' is held to refer to the living person or persons holding that relation at the time of the testator's death in the absence of an intention to the contraryclearly evidenced in the will itself." (italics ours)Dorrance v. Greene, 41 R.I. 444, 451. Thus in both of these cases the court lays down the same rule, although in the first-cited case it found that the word "heirs" in the will before it was used by the testator in its generally accepted legal sense, and in the second case it was used in a special sense which was clearly evident from other language in the will.
The burden is plainly on those who argue for a construction that would determine this testator's heirs as of the death or marriage of Sarah Jane Goodwin, because such a construction can only arise from language which clearly shows the testator's intent to use the word "heirs" in that special rather than its ordinary sense. The testator's language, in our opinion, does not clearly submit to such a construction. On the contrary, it appears to us that he has used language which quite clearly created a remainder to his legal heirs that vested immediately upon his death. "The law favors vesting of estates immediately upon the death of the testator, and will not regard the remainder as being contingent, in the absence of a clear intent on the part of the testator to that effect. . . ." (italics ours)Taber, Tr. v. Talcott, 40 R.I. 338, 342. An intention to defer vesting the remainder is not to be inferred because of the fact that the first taker is one of the class designated to take in remainder. "Nothing is more common than that an estate for life should be given to one to whom a remainder over in fee is afterwards devised." Doe dem. Garner v. Lawson, 3 East 278, 291. *Page 8
And so in the will before us the fact that Sarah Jane Goodwin, a legal heir of the testator under "the inheritance laws of Rhode Island", took by name in the will a life interest in the same estate affords no clear ground for rejecting the literal, ordinary and legal sense of the word "heirs" and for construing such word to mean those who would qualify as his heirs had he died immediately after the marriage or death of Sarah Jane Goodwin.
The respondents who urge such a construction "admit that, if there is no evidence of a contrary intent the term `heirs' means heirs determined at the time of the testator's death"; but they argue that this court "has repeatedly held, in the construction of wills involving limitations most closely resembling those of the present will, that the testator used the word `heirs' not in its ordinary sense but as designating a class to be determined as of a later period." And they cite the following cases upon which they most strongly rely in support of their position. Dorrance v. Greene, 41 R.I. 444; Taber, Tr. v. Talcott, 40 R.I. 338;Branch v. De Wolf, 38 R.I. 395; Tyler for an Opinion,30 R.I. 590; De Wolf v. Middleton, 18 R.I. 810.
These respondents concede that there is another line of cases "holding that `heirs' in connection with a gift of a remainder interest means heirs determined as of the time of the decedent's death", but that such cases "are readily distinguishable from the present one." Those cases are Grosvenor v. Bowen,15 R.I. 549; Green v. Edwards, 31 R.I. 1; Roberts v. Wright,48 R.I. 139; Kenyon, Petitioner, 17 R.I. 149; Oulton v.Kidder, 128 A. 674 (R.I.); Goodgeon v. Stuart, 50 R.I. 6, decided in 1929.
On the other hand, the respondents, who urge that the word "heirs" in the present will should be construed in its ordinary legal sense, contend that the three last above-cited cases particularly resemble the instant cause. They rely *Page 9 upon those cases, as well as upon the recent case of Barker v.Ashley, 58 R.I. 243, to support their position. We agree with this contention and are of the opinion that the instant cause should be decided consistently with those cases.
Moreover, these same respondents claim that each case, even in the group of cases first above cited upon which the other respondents rely in support of their position, expressly recognizes the general rule that the word "heirs" in a will is to be given its ordinary legal meaning. But they point out that in each of those cases the language of the will before the court was such that it clearly indicated to the court that the testator had not intended to use the word "heirs" in its ordinary legal sense, and that therefore the court, in accordance with the primary rule of construction of wills, was bound to give and did give effect to that intention.
We are of the opinion that such is a correct view of those cases. An examination of them will disclose that in each case the testator, to effect the ultimate disposition of his estate, used markedly different language from that which the testator used in the instant cause. It is also evident from the opinion of the court in each of those cases that it found in the testamentary language an element of futurity annexed to the substance of the gift clearly indicating an intention on the part of the testator to dispose of his estate to a class of persons determinable on the happening of an event other than his death, although he used the word "heirs" to describe such a class. In no case, however, did the court cast doubt on the general rule, but rather approved it, subject only to the primary rule of finding the intention of the testator. For example, in the first decided case in that group of cases — De Wolf v. Middleton, supra — the court said: "While the general rule is that the heirs of a testator are to be taken from the time of his death, yet the rule gives way to a contrary intent to be found in the will." And see also language hereinbefore quoted from the last *Page 10 decided case in that same group of cases — Dorrance v. Greene,supra.
As an illustration of language which this court found sufficient to raise such an intention of the testator contrary to the general rule, we may consider briefly the above-cited DeWolf case, which was the first case decided by this court in which it construed the word "heirs" as intending to designate a class which was to be ascertained at a time other than the date of the testator's death. There the language under consideration furnished strong ground for finding that the testator was thinking of a class to be determined by some future event beyond his own death. He devised his farm to his daughters, Charlotte and Maria, their heirs and assigns, but "provided, however, that in case my daughters . . . should die, leaving no surviving issue, then it is my will that the estate, on their decease, be divided among my heirs at law, according to the statutes of descent. . . ." By this language, of course, there was no certainty that his heirs would ever take. Their right was wholly contingent upon the uncertain event of the testator's daughters dying without leaving issue surviving them. As this court said, at page 815 of the opinion: "In making such a gift his mind would naturally look forward to the time when the estate might vest in possession, and so the words used comport with an intent to point out the time and mode of ascertaining who the heirs will be, by designating a class to take as executory devisees." (italics ours)
It is illuminating to observe that in that case the court recognized that where "there was a precedent estate supporting a remainder, created from the death of the testator, but contingent upon an event", it would follow that "the heirs must be ascertained as of the testator's death, because the interest in the remainder began then." They held that there was no such prior estate in the will before them, but that the devise over was limited on a fee and was therefore *Page 11 an executory devise. And in that case the court admitted that, if the language of the will created a contingent remainder, it would have to hold that the word "heirs" would mean persons who were heirs of the testator as of his death.
In our present case the testator has created more than a contingent remainder; he has created a vested remainder. The language of the sixth clause postpones merely the enjoyment but not the vesting of the interest devised. Although no express gift to the cestuis que trust was made, other than a direction to divide the trust estate between them at a future time, nevertheless, by the fifth and sixth clauses an absolute gift in trust to the trustee was made and it conferred upon the cestuisque trust an immediate vested interest. The general declaration of trust which precedes the direction to pay implies an absolute gift of a present beneficial interest. Booth v. Booth, 4 Ves. Jr. 407; Saunders v. Vautier, Cr. Ph. 240; Hanson v.Graham, 6 Ves. Jr. 239, 248. The words in the sixth clause, "shall be divided", therefore furnish no sufficient ground for holding that the testator clearly intended to annex futurity to the vesting of the gift, so as to make the general rule inapplicable. The futurity denoted by those words relates merely to the time of enjoyment and not to the vesting of the devise. The gift of the interest here begins with the declaration of a present absolute interest for the benefit of the cestuis quetrust.
We have treated this phase of the matter at some length mainly for the reason that we do not wish to be understood as saying anything here that would be considered critical of the conclusions to which this court arrived in the cases cited by the respondents, who urge that this testator's heirs should be ascertained as of the marriage or death of Sarah Jane Goodwin. On the contrary, we recognize those cases as neither inconsistent with the conclusion to which we come in the instant cause nor contrary to those cases cited by the respondents, who urge that the testator's heirs should be *Page 12 determined as of the date of his death. Both lines of cases may stand, as they illustrate not a divergence on the law, which should govern the construction of language in a will such as in the instant will, but rather merely different applications of accepted rules to variations in the mode of particular testamentary expressions. On the one side the testamentary language afforded the court grounds for finding a clear intent of the testator to use the word "heirs" in a special sense rather than in its ordinary legal sense, and on the other side furnished the court no such grounds.
On the view which we have taken, a further question arises. Those respondents who argued for the postponement of the ascertainment of the testator's heirs to the marriage or death of Sarah Jane Goodwin urge that, even though the heirs are to be ascertained as of the testator's death, Sarah Jane Goodwin should be excluded therefrom. They argue that the testator did not intend that she should have both a life interest in the whole estate and a vested remainder. They assert there is an incongruity in such a construction. We see no incongruity from the point of view of the law. As was said above, it is not an uncommon thing for one who is given a life interest also to be included among those to whom is given the remainder. However, they cite, in support of their view, Rogers v. Rogers,11 R.I. 38. It is true that there the court did make such a construction, but in doing so it admitted that it was disregarding the general rule of law because of the particular circumstances which it held were indicated by the testator's whole will. We find no indication in the present will which would justify us in doing what was done in that case.
For the reasons stated, we are of the opinion that the heirs of the testator, within the meaning of his testamentary language, are those who composed that class at the date of his death. *Page 13
On December 29, 1939, the parties may present to us a form of decree, in accordance with this opinion, to be entered in the superior court.