Because of a considerable number of reported cases in this state which in my judgment lay down and apply a rule of law that is inconsistent with the opinion of the majority of the court in this cause, and because of the absence of cases in this state which in my judgment reject that rule, and because of certain special features of the will, I dissent from that opinion.
The fundamental problem here is to determine in what sense the testator uses the words "my legal heirs" in the sixth clause of his will. That clause must be construed in the light of the fifth and seventh clauses, in which he makes his aged and unmarried sister both sole trustee and sole beneficiary of his residuary estate, much the greater part of it being personal property, so long as she lives unmarried, and gives her the power of sale and reinvestment and the power to use for her necessities or comfort not only the income, but also the principal, even to the consuming of the whole of it. In the fifth clause he directs that upon her marriage or death "such part of any estate remaining under the trust shall be divided amongst my legal heirs in accordance with the inheritance laws of Rhode Island."
To this sort of a question, concerning the creation of estates in real and personal property by will, the doctrine ofstare decisis applies with special force. Therefore and because in my judgment the rule of construction to be applied to the will now before us is settled by the clear and great weight of authority in this state, I see no good reason for going elsewhere for authority. *Page 14
In the opinion of the majority of the court six Rhode Island cases are cited as "holding that `heirs' in connection with a gift of a remainder interest means heirs determined as of the time of the decedent's death." It seems to me desirable to discuss three of these six cases before taking up any of the other or any of the cases in which the words "my heirs" in a will have been construed otherwise. Those three cases are Grosvenor v. Bowen, 15 R.I. 549, (1887); Green v. Edwards, 31 R.I. 1, (1910); and Roberts v. Wright, 48 R.I. 139, (1927).
In the first of these cases the testatrix devised certain real estate to her husband for life and upon his death to such persons as he might by last will appoint and, in default of appointment, to her own heirs at law. This court held the remainder to be a vested one, subject to be divested by the exercise of the power of appointment. The estate in remainder having been created by words of present devise and not by a direction to a trustee to divide and pay over the trust estate to the testator's heirs upon the happening of a future event, the case is obviously distinguishable from the instant one.
In Green v. Edwards, supra, the testator gave most of the residue of his property to trustees in trust for his three children and their issue by language which this court construed as creating equitable estates-tail in them, with cross remainders for similar estates. The testator then directed the trustees as follows: "In case of the death of all my said children without issue, they shall transfer and convey the estate held by them in trust to my heirs at law according to the statutes of descent and distribution then in force in the State of Rhode Island." At page 19 of the opinion this court said that by this quoted language "a vested remainder is given to heirs at law to be thenascertained." In view of the words which I have italicised in this quotation, I do not see how that *Page 15 case can fairly be quoted as supporting a contention that in the instant cause the testator used the word "heirs" in the sense of his heirs to be ascertained at the time of his death.
In Roberts v. Wright, supra, the testator gave to his wife the interest on his money on deposit in a certain bank and then added: "The interest of this money goes to my wife as long as she lives, when she dies it is to go to my next heir." As to the gift over, this court simply said that it found a reasonable construction of the paragraph to be that upon the death of the testator's wife the fund "passed to the person or persons who came within the designation of the testator's heir or heirs at the time of his death."
It does not appear from the opinion that any party to the cause made any contention against this construction of this part of the will; and it should be noticed that the final disposition of the fund in question did not, as in the present cause, consist solely of a direction that upon the happening of a certain event any estate remaining under the trust "shall be divided amongst my legal heirs" or of any similar direction.
In my judgment none of the three cases just discussed furnishes any material support to the contention that in the instant cause the testator used the word "heirs" in its ordinary sense; and apparently the counsel who argued for that contention in this cause took the same view of those cases, as they did not in their comprehensive briefs cite any of them.
It seems to me that the proper rule of law to be applied in the solution of the fundamental problem in the instant cause should be determined from a consideration and comparison of the cases which are relied upon by the counsel for the respective groups of respondents and include. *Page 16 I believe, all the Rhode Island cases that are really relevant. I therefore take up these cases in their chronological order.
In Staples and Pearce, Trs. v. D'Wolf, 8 R.I. 74, 117, (1864), the testator, by the twelfth clause of his will, gave and devised the residue of his estate to his executors, in trust for certain persons and their heirs, for the term of twenty years, the income to be paid to these persons, "and their respective heirs", for that term. These persons, who were all named in this clause, were his children, the children of his deceased daughter, who as a group were to have one share, and his grandson. He then directed that at the end of the twenty years the property be divided equally among these same persons, "or their respective heirs, should any of them be dead, share and share alike."
At page 118 the court said: "The law favors the vesting of estates; and, when a gift is made to a person in esse, it passes to the legatee, as a vested interest, immediately on the death of the testator. . . . And if there be a prior gift created, determinable upon an event certain to take place, and there be a gift over upon such determination, the last gift will vest with the first, and it will be held that the possession and enjoyment of the gift is postponed, but not the gift itself. . . . It is, however, a question of intent, to be gathered from the whole will, and the construction might be varied, if from other parts of the will, it appeared that the testator intended that the gift itself should not take effect until the happening of some event in the future; and the question is always, — is futurity annexed to the substance of the gift? If so, the vesting is postponed; or is it annexed to the time of payment only? If so, the legacy vests immediately."
At page 120 the court said: "That a trust is interposed does not prevent the gift from vesting, in interest, in *Page 17 the cestui que trust. The rule referred to is, that where the gift is to be implied only from the direction to divide or pay, or to transfer at a future time, the vesting will be postponed to such time, unless the contrary appear from other expressions of the testator, implying a postponement of the possession only, and not the vesting."
Considering all relevant language of the will before it, the court found that the intent of the testator was to give both the equitable estate for twenty years and the estate in remainder thereafter to the same persons, named, and their respective heirs, and that both estates vested on the death of the testator. But the above quotations from pages 118 and 120 of the opinion show that the court recognized the rule stated on page 120 as being applicable to remainders and it did not suggest that it applied only to executory devises.
In Rogers v. Rogers, 11 R.I. 38, (1874), the gift over of the residue, after the termination of a trust estate for the life of the testator's widow and for her benefit, was in the form of a direction to the trustee to divide the trust estate, after her death, "equally between his eight children now living, or their legal heirs, per stirpes and not per capita, if any of them be dead when this bequest takes effect", meaning by "his eight children" the children of the trustee. This court, in the opinion, recognized that the fact that the gift over was in the form of a direction to the trustee to divide the trust property, on the death of the life beneficiary, among a class of persons was a reason for finding an intention on the part of the testator to "annex futurity" to the substance of the gift, the rule often referred to as the "divide and pay over rule." But, after much hesitation, the court found that other language in the will, showing that the testator intended the gifts over to vest at his death, should be held to prevail over the indication to the contrary from the direction to divide the trust estate in the future. *Page 18
There again, as in the case just before discussed, the gifts over, at the end of the particular estate, were to certain persons fixed at the execution of the will, or to their respective heirs in case of the decease of any of them. It should be noticed that in the opinion the fact that the gifts over in question were remainders and not executory devises was not mentioned as a reason for not applying the "divide and pay over rule."
In Kenyon, Petitioner, 17 R.I. 149, (1890), the testator gave all his property to a trustee and his heirs for the life of the testator's son, Daniel C. Kenyon, in trust for the latter and with power to use some of the corpus of the trust estate for the benefit of the son; and then added: "After the decease of said Daniel C. Kenyon, I give and bequeath all the property affected by the above trust, which shall then remain, to my own right heirs." The son having later died without issue, it was contended that, because the gift over, on the death of the son, was of what should then remain of the trust property and also because, at the father's death, the son was his only heir, the "heirs" to whom the remainder was given should be determined as of the date of the son's death.
But this court overruled that contention and held that the grounds relied upon were not strong enough indications that the testator intended to annex futurity to the substance of the gift, and to have the class of "heirs" determined as of the date of the son's death, to overcome the effect of the words of presentgift and "the rule that the law favors vesting very strongly." The decision was that the son, on his father's death, received also a legal estate in remainder, expectant upon the determination of his own equitable life estate.
The fundamental distinction between the will there construed and the one now before us is that in the former one the testator made the gift over, after the decease of *Page 19 his son, by words of present gift only, "I give and bequeath", while in the present will the testator states that upon the marriage or death of his sister, "such part of any estate remaining under the trust . . . shall be divided amongst my legal heirs", words of future import only.
In De Wolf v. Middleton, 18 R.I. 810, (1893), the testator devised certain real estate to his widow for her life and then to his two daughters and their heirs and assigns forever. He next provided that in case they should die without leaving issue, "then it is my will that the estate, on their decease, be divided among my heirs at law, according to the statutes of descents, their heirs and assigns forever; and I do devise the same accordingly." This court held that the testator's "heirs at law" under this clause should be determined as of the time of the death of the survivor of the life tenants, without issue.
The court there recognized the general rule that the heirs of a testator should be determined as of the time of his death, but held that it must give way to a contrary intent found in the will; and it found such a contrary intent in the language above quoted. After referring to and quoting from it, the court, at page 815, said as to the testator: "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."
It is true that in that case the court called attention to the distinction between executory devises and remainders in the matter of vesting, and to the fact that the gift in question was an executory devise, giving that as one reason for reaching the conclusion which it did reach. But it also gave an additional reason for that conclusion, *Page 20 saying on page 816: "Moreover, the words are that the estate, `on their decease be divided among my heirs at law'. The division was to be prospective, and we see no reason why the class should not also be taken to be so. For these reasons, as well as those given in the previous opinion, we think that these words were intended to fix the time for the vesting of the estate and for the ascertainment of the persons to take in possession. They are not substantially different from cases where the devise is to those who shall then answer the description."
In Tyler for an Opinion, 30 R.I. 590, (1910), the language in question was: "Third. I give, devise and bequeath unto my granddaughter, Clara M. Robinson, all the rest and residue of my estate of every kind and wheresoever situate or lying to be and remain to her, her heirs and assigns forever; if the said Clara M. Robinson should die without leaving living issue, born of her own body, then in that case I give, devise and bequeath my said estate to my heirs at law." Clara M. Robinson died without leaving issue. In that case the interests in question were executory devises and this court there reached a result similar to that reached in De Wolf v. Middleton, supra, namely, that the "heirs at law" should be determined as of the date of the death of Clara M. Robinson. This it did on the authority of that earlier case, although in the will in the earlier case there were not only words of present gift of a future interest to the testator's heirs, as in the Tyler case, but there was also a direction that upon the termination of a particular estate the property should be divided among the testator's heirs at law, a feature which was absent in the later case.
In other words, the court decided the later case solely for the first reason given for the like result reached in the former case, i.e., that the estate in question was an executory limitation, the second reason, i.e., the direction *Page 21 for a division among the testator's heirs on the happening of a future event, being absent in the latter case. But there is no statement or clear implication in the opinion in either case that the second reason would not be sufficient, if present, even in the absence of the former reason.
In Branch v. De Wolf, 38 R.I. 395, (1915), the testator left real estate to his wife for life, then to his niece for life, and then to his nephew in fee, on condition, however, that the nephew would change his name to that of the testator. But the testator provided that if this nephew should reject the condition, this real estate should be sold and the proceeds thrown with the personal property and that "the whole is to be divided between my sisters if alive; or their heirs, if dead, in equal proportions."
The nephew, when the time came for his interest to come into possession, rejected the condition; and the above-quoted provision then came into effect. At that time the testator's sisters were both dead. The question then arose whether the sisters' heirs, who were thus entitled to receive the personal property, were to be determined as of the dates of the deaths of the sisters respectively or as of the date for distribution. This court, at page 411, held that the heirs should be determined as of the date for distribution, saying that the answer to the question was found in the decision of the case of De Wolf v.Middleton, supra, and quoting nearly all of what I have above quoted from the opinion in that earlier case.
In the later case the interest in question was a contingentremainder, dependent upon a contingency with a double aspect, and not an executory devise, though this court, in the opinion, did not call attention to that fact. It rested the decision solely on the second reason given in the earlier case, the use of words directing division among heirs at the termination of the prior estate, and gave effect *Page 22 to that reason, although the interest involved was not an executory devise, as in the earlier case. At page 401 of the opinion the court says: "It would be difficult to find a case where it is more plainly evident that futurity is in the essence of the gift."
In Taber, Tr. v. Talcott, 40 R.I. 338, (1917), the testator had left the residue of his estate in trust to pay the income to his wife for her life and then to his three children and the survivors and survivor of them. He had then directed that upon the death of the last survivor of his wife and children the trustees should discharge themselves by conveying all the trust property then held by them "to my heirs at law and to their heirs, executors, administrators and assigns forever." After a discussion of preceding cases on the subject in this state, this court held that the testator's "heirs at law" should be determined as of the date for the final distribution of the trust estate.
In Dorrance v. Greene, 41 R.I. 444, (1918), the testator, after giving his wife $12,000 in lieu of her dower or other interest in his estate and making many small bequests, gave the residue of his property to trustees, in trust for the benefit, during her life, of his daughter, who was his only heir at his death. In the event that she should die leaving children surviving her, he provided that they should have the full benefit of the trust estate. In the event that she should die without leaving any living child, he directed that the trustees make certain payments and should distribute the residue of the trust estate to and among his "heirs at law in the proportions in which they would severally be entitled under the statutes for the distribution of intestate estates."
This court found that it was plain, from language in the will, that the testator did not intend that his wife should have any benefit from this last provision. It also *Page 23 called attention to the fact that the daughter was his only heir at his death. It then held that with this situation in mind "it seems reasonably plain that the testator in providing as to this residue that the trustees `distribute' it `to and among my heirs at law in the proportions in which they would severally be entitled' is directing his mind to the death of his daughter at some time in the future, near or remote as the case might be, and to such distribution among those who would then be his heirs. . . . . Construing the will thus the `heirs at law' are to be determined at the date of the death of the daughter."
That case was obviously a clearer one for such a construction of the words "heirs at law" than the case of Taber v. Talcott,supra, or the instant case. But the court plainly recognized the direction for distribution upon the termination of the equitable life estate as evidence of an intention by the testator to annex futurity to the substance of the provision for an equitable interest in the nature of a remainder in his heirs at law.
This court also said, in its opinion, that the case was readily distinguished from the Kenyon case, supra, because of the use of the words "I give and bequeath" in the Kenyon will. It also indicated by the way in which it referred to Taber v.Talcott, supra, that it agreed with the reasoning in that case and the comment, in the opinion therein, on the previous Rhode Island cases in which the words "heirs at law" were similarly construed.
It should be noticed particularly that the future interest involved in Dorrance v. Greene was, as above stated, of the nature of a remainder and not of an executory devise. The court did not find that this prevented the words "heirs at law" from being construed as they were.
Another Rhode Island case relied upon by the group of respondents who contend that in the will now before us *Page 24 the testator's "legal heirs" should be determined as of the date of his death is Oulton v. Kidder, 128 A. 674 (1925). There the testatrix, a widow without children, gave the income of all the residue of her estate to her brother for his life, and then added: ". . . and after his decease I give, devise and bequeath the same to, including Helen E. Oulton and my legal heirs (as Mrs. Oulton is niece of my husband I wish to include her in the residuary of my estate) to them their heirs and assigns forever." This court held that the "legal heirs" of the testatrix should be determined as of the date of her death. The gift to them was stated exclusively in terms of present gift. The case therefore does not support the contention for which it is cited.
A case decided in 1929 and cited by the same group of respondents is Goodgeon v. Stuart, 50 R.I. 6. There the testator devised certain real estate to trustees, in trust to pay the income therefrom to his wife during her life and then equally to his four children, naming them, during their respective lives; and upon their respective deaths to divide the principal of their shares, in fee, among such of their respective children as should survive the testator. Cross remainders were provided for in case of the death of any of the testator's children without leaving any surviving issue. Then came the provision which had become operative before the case came before this court, the widow having died, and all the children having died intestate and without having been married. This provision was that the trustees hold the property "in case of the failure of all the limitations and objects of the preceding trusts In Trust for my own right heirs forever."
This court, in its opinion, referred to most of the cases discussed supra, and stated that nothing in the will indicated "that the testator did not use the word `heirs' in the ordinary, legal sense." It therefore held that he, *Page 25 "by the final limitation to his `own right heirs forever', intended to designate the persons who were his legal heirs at the time of his death . . . ." There was no provision for division or payment over; and after considering the opinion and all the language quoted therein from the will, I do not believe that the case is inconsistent with the cases which are relied on by the other group of respondents, in support of their contention that in the will before us the testator clearly used the words "my legal heirs" as meaning the persons who would be his heirs in a nontechnical sense immediately after the marriage or death of his sister, the life beneficiary of the trust.
The most recent case cited by the former group in support of their contention is Barker v. Ashley, 58 R.I. 243 (1937). In the will there involved, the testator, after giving to his wife, in all his property, what this court construed to be a life estate with very broad powers of sale and consumption as well as of use, stated that, if there was anything left above expenses at the time of both their deaths, it was to be equally divided among their respective brothers and sisters or, if any of them should be dead, to go to their children, except that a certain brother's share should go to his named son, less $150. The question was raised whether the remainders thus provided for were vested or contingent and this court held them to be vested.
But there it was not directed that the remaining property, upon the death of the widow, the life beneficiary, be divided among a class of "heirs" or other class of a general description, with the question left reasonably open as to when membership in the class should be determined, but that it be divided among definitely described persons, determined at the date of execution of the will, with what amounted to gifts over, in case any of them should die in the meantime, to their respective children. With respect *Page 26 to the question of the time of vesting, the will much resembled that in Rogers v. Rogers, supra, and I am of the opinion that it is clearly distinguishable from the one now before us.
There appears to me to be an unbroken line of authority in this state, from De Wolf v. Middleton, supra, decided in 1893, down to the present time and composed of at least four cases, above cited, which supports what has been called "the divide and pay over rule". In two earlier cases, Staples andPearce, Trs. v. D'Wolf, supra, and Rogers v. Rogers,supra, the rule seems to have been recognized as valid, though this court found special reasons, throwing light on the actual intentions of the testators, for not applying it in those cases.
The form of this rule that has been thus applied in this state, beginning in 1893, is that if property is given by will to a trustee, to be held in trust for certain purposes until the happening of a described event and then to be divided among the heirs of the testator or of another person, this is a sufficient reason for finding that the testator clearly intended that the "heirs", who would be entitled to the receipt of such property upon the occurrence of that event, should be determined as of the time when that event has occurred. The effect of such a provision might, however, be overcome by other language in the will indicating that the testator's intention was to the contrary.
In view of this unbroken line of authority in this state, supported as it is by reasoning in which I believe there is merit, I am convinced that this rule should now be considered as well settled here, without regard to the question whether or not the same rule is generally applied elsewhere.
The next question which I believe should be considered is whether, besides what has been already discussed, there *Page 27 is anything in the admitted facts or in the language of the will which throws any light upon the sense in which the testator here probably used the words "my legal heirs". In the first place we have the fact that the will was holographic, with nothing to indicate that he had any professional assistance in drawing it. I believe that this fact, on principle and authority, considerably lessens the weight to be given to the usual presumption that the testator used the words in question in their technically accurate signification.
Then also we have the language of the seventh clause of the will, by which the testator emphasized the fact that it was his paramount intent to provide for the comfort or necessities of his sister Sarah Jane, so long as she lived unmarried, even to the consuming of his estate.
Reading this clause with the fifth and sixth, it is obvious that this sister was given the power and right to consume even the entire trust estate and that only what, if any, of it remained at her marriage or death was then to be divided among the testator's heirs. It may be that the mere fact that under the terms of the will there might be nothing then for the heirs to receive would not prevent these interests from being vested in the technical legal sense. But it would prevent them from beingsalable, as a practical matter, and would therefore eliminate one of the motives for construing testamentary interests of heirs as vested rather than contingent. This is another reason, in the instant cause, for giving less weight than usual to the presumption as to the construction of the word "heirs".
Moreover the fact that the direction to divide expressly applied only to what property might remain, after the sister had consumed all of it which she chose to consume for her comfort or necessities, shows that the testator's mind was strongly directed to the time of her marriage or *Page 28 death, because he was providing that only then would the questions be determined whether there would be anything to be divided, and if so, what it would be. This fact therefore strongly indicates that he intended to annex both futurity and contingency to the substance of the provision for the benefit of his "heirs at law".
When the language of these three clauses is carefully considered, the most natural inference to be drawn is, in my judgment, that if this sister, who was old and unmarried when the will was made, should die without having married, the testator did not wish anyone to get any part of his estate, then remaining, through her as one of his heirs; and that, if she should marry and thus have a husband, presumably able to support her, he wished her then to be precisely in the same position as his other sister, who was married. Each of them would then become entitled, as one of his heirs determined as of that date, to receive from the trustees a share of any trust property then remaining.
Taking all these matters into consideration and applying to the pertinent language of the will the rules of law which I believe to be applicable thereto according to the unbroken line of authority in this state, it is my opinion that the trustee under this will should be instructed as follows: That the "legal heirs" of the testator, among whom the trust property is to be divided, are to be determined as of a date directly after the death of Sarah Jane Goodwin; that the persons who are entitled to receive the trust property are the persons who would have been the heirs of the testator, if he had died immediately after her death; and that they are entitled to receive the property in the same shares as they would have been entitled as his heirs to receive his property, if he had died at that time intestate.
BAKER, J. concurs in the opinion of Moss, J. *Page 29