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kinds of property are to go in different directions, the whole property will go to those technically described as heirs.
12. SAME INTENTION OF TESTATOR-CONSTRUCTION IN FAVOR OF HEIR.
By Pub. St. 1882, c. 124, § 1, a husband surviving his wife, who leaves no issue, takes her real estate in fee to the amount of $5,000. Testator's will required the income of his estate to be paid to his surviving children during their lives, and it was provided that upon the death of any son the income should be paid to the widow during her widowhood, and that upon the death of any daughter her share should be paid to the surviving husband, and that upon the death of any child leaving no surviving child or husband, or the death of any surviving husband, or marriage of any such widow, the shares should be paid to the issue of the deceased son or daughter, and in default of such issue to the heirs at law of the son or daughter. Held, that a surviving husband of a daughter took as his wife's heir up to the statutory amount; there being nothing to indicate that testator's general scheme was in all contingencies to limit his bounty to his own descendants.
13. CONVERSION-DIRECTION IN WILL.
Where testamentary trustees are given power to sell real estate and to change investments, but there is not direction that real estate be converted into personal property, the proceeds of real estate originally forming a part of the trust are to be treated as real estate in making distribution of the trust fund until the final vesting of the estate in the parties ultimately entitled thereto.
[Ed. Note.-For cases in point, see vol. 11, Cent. Dig. Conversion, § 34.]
Report from Supreme Judicial Court, Suffolk County.
Suit by one Gray and others as trustees under the will of Thomas Whittemore against one Whittemore and others, for a construction of the will. Case reported, will construed, and instructions given.
Whipple, Sears & Ogden, Hugh W. Ogden, and Edwin M. Brooks, for Josephine P. Thwing. James P. Richardson and Warren W. Hart, for Malcolm McLoud. Roger F. Sturgis, for Marion St. C. Whittemore and Charles S. Clark, her guardian. C. A. Whittemore, for George P. Gifford and others. John G. Palfrey and Boyden, Palfrey, Bradlee & Twombly, for George L. Whittemore.
SHELDON, J. Thomas Whittemore died on March 21, 1861, leaving a will, by the fifth clause of which he bequeathed all the residue of his estate to trustees in trust to pay the net income thereof to such of his children as should survive him, during their lives; and also upon the death of any of his sons "to pay to the widow or widows of such son or sons, if any, the respective shares of income which would have been paid to the deceased husband or husbands if living, to wit, so long as she or they shall remain the widow or widows of such deceased; and upon the death of any of my daughters who shall survive me, to pay the surviving husband or husbands of such deceased, if any, the respective shares of income which would have been paid to the deceased wife or wives if living, to wit, during the natural life or lives of such husband
or husbands; and upon the death of any of my sons leaving no widow, or of any of my daughters leaving no husband or of any hus band of any of my daughters, who shall survive such daughter, and upon the death or marriage of any widow of any of my sons, such share of the principal sum and estate so held in trust, as shall be proportional to the income that would have been paid to such deceased son, daughter, daughter's husband or son's widow shall be paid or transferred to the issue if any of such deceased son or daughter; and in default of such issue at the time of such decease or marriage, the same shall be paid or transferred to the respective heirs at law of such my deceased son or daughter: and this provision shall take effect, both in the case of such issue, and in the case of default of such issue at the time of such decease or marriage, whether such decease or marriage take place after my own death or before. 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."
The testator left surviving him a widow, who has since died, and eight children: John M. Whittemore, Thomas Whittemore, Benjamin B. Whittemore, Abbey E. Ruggles, Lydia A. Lucas, Joseph Whittemore, Lovice C. Cowles, and Eliza A. Gifford. All these children have now died, the first named in November, 1861, and the others at various dates since that time, some leaving only a widow or husband, some leaving only issue, and some leaving both issue and a widow or husband. The trustees have distributed according to the terms of the will four of the eight shares which made up the trust fund, being the shares which became divisible by the death of the children and their surviving husbands or wives prior to 1904; one share is still held for the benefit of the widow of a son of the testator for her life or widowhood; all the life interests in the other three shares of the trust fund created by the will have now come to an end; and the plaintiffs, who are the present trustees under the will, ask that they may be instructed to what persons and in what proportions they should distribute these three shares.
The defendants Josephine P. Thwing and McLoud contend that the remainders which are attempted to be created by the residuary clause of the will in question are all invalid on the ground of remoteness under the rule against perpetuities, and especially that the gifts over upon the death or remarriage of the surviving husbands or wives to the testator's children are so invalid, both in the event of there being issue of the children surviving at the time of such death or remarriage and in the event of there being no issue surviving at that time, and that the residue of the testa
tor's estate must now, after the death of all his children, be taken to be undisposed of by his will, and must go to the persons who now represent those who were his heirs at law or next of kin at the time of his death. Mrs. Thwing also claims that she is in no way precluded from asserting her full rights by the distributions that have been made of the four shares of which the income was payable to John M. and Thomas Whittemore and Mrs. Ruggles and Mrs. Gifford, or by the allowance of the trustees' accounts which showed such distributions. She claims that she is entitled to a common-law dower interest in her husband's share of this residue, so far as it consisted of real estate, and to the personal property, to the amount of $5,000 and to onehalf of the excess above $10,000. She also claims that if the whole will is valid, she was yet one of the heirs at law of her deceased husband, John M. Whittemore, a son of the testator; that on her. remarriage one-eighth of the residuary principal was payable to his heirs, and that of this one-eighth share she was entitled to have her dower in the real estate, and her distributive share in the personalty. The defendants Wellington and McLoud contend that past distributions, whether erroneous or not, cannot now be inquired into or taken into account, and that their intestates Lucas and Cowles are entitled each to the share of his deceased wife either as her devisee and legatee or as her statutory heir and next of kin, whether the limitations made by the residuary clause of the will in question were valid or invalid. The defendant Wellington also claims that if these limitations were valid Cowles was entitled in the right of his deceased wife to participate in the distribution of the shares of which Mrs. Lucas had received the income, when the right to this distribution accrued on the death of Mrs. Lucas in 1904. In the event of some of these claims being maintained, it will also be material to determine whether the fund in the hands of the trustees is to be regarded wholly as personal estate, or whether that part of the fund which consists of the proceeds of real estate sold on or before April, 1898. is still to be treated as real estate.
We see no ground for the contention that the limitations in remainder immediately after the life estates given to the testator's children are too remote. Of necessity the children of the testator who survived him must all be in existence at the time of his death; and their life estates must all expire within the limit of lives then in being. It is settled that an interest is not obnoxious to the rule against perpetuities if it begins within the prescribed period, although it may extend beyond that limit. Gray on Perpetuities (2d Ed.) § 232, and cases there cited. The life estates given to the surviving hushands or wives of the testator's children are therefore valid. And we are of opinion that the limitation of the principal sum of a share
to the issue of his children who should die leaving no husband or wife is also valid. The remainder to the issue of his children is given upon two alternatives, first upon the death of his children respectively without leaving any surviving husband or wife, and secondly, upon the death of any surviving husband or the death or remarriage of any surviving widow. If we assume for the sake of the argument that the remainder limited upon the latter event is to go only to the issue in existence at that later time, is merely contingent and comes (as in that case it might come) within the rule against perpetuities, yet the remainder limited upon the former event, a wholy distinct and separate event, would be valid. Gray on Perpetuities, § 341 et seq.; Stone v. Bradlee, 183 Mass. 165, 66 N. E. 708; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Jackson v. Phillips, 14 Allen, 539, 572. This is not the case of a limitation expressed to be made upon one double contingency or upon the happening of two events which the testator has not separated, but one in which the testator has himself made the distinction and separation between the two different events, either one of which, if it occurs, will exclude the existence of the other. Miles v. Harford, 12 Ch. D. 691; Moneypenny v. Dering, 2 De G., M. & G. 145; Lake v. Robinson, 2 Mer. 363. It is true, no doubt, that where the testator has made only one contingency, though depending upon a twofold event, the courts will not split this up into two contingencies, one good and one bad, and sustain the limitation on the ground that only the good contingency has taken place. Proctor v. Bishop of Bath, 2 H. Bl. 358; Harvey, In re, 39 Ch. D. 289; Hancock v. Austin,  A. C. 14. But this is not such a case. And see the decisions cited in 22 Am. & Eng. Encyc. of Law (2d Ed.) 708. However it may be, therefore, in the cases of other children, we are clearly of opinion that the limitation to the issue of those of the testator's children who should die without leaving a husband or wife surviving her or him was valid. It follows accordingly that the limitations to the issue of Thomas Whittemore and of Eliza A. Gifford were valid, and the distributions of the share of the trust fund of which they had respectively received the income were properly made by the trustees to their issue in accordance with the terms of the will.
But it is contended that the life estate given to the surviving husbands or wives of the testator's children might go beyond the measure established by the rule against perpetuities, of a life or lives in being and 21 years thereafter; for one of his children might marry a person not in being at the time of his decease, and such person might be the survivor of the marriage; so that remainders which could take effect only upon the death or remarriage of any such surviving husband or wives might not become vested within the necessary period. Sears v. Russell, 8 Gray, 86; Lett v. Randall, 3
Sm. & G. 83; Goodier v. Johnson, 18 Ch. D. 441. Undoubtedly this is true. And, as was said In the leading case of Brattle Square Church v. Grant, 3 Gray, 142, 152, 153, 63 Am. Dec. 725, quoted and followed in Sears v. Putnam, 102 Mass. 5, 7: "In order to test the legality of a limitation it is not sufficient that it be capable of taking effect within the prescribed period; it must be so framed as ex necessitate to take effect, if at all, within that time." As has been stated, a remainder that could not become vested until the death or remarriage of the surviving husbands or wives of the testator's children might by possibility not take effect until after the expiration of the prescribed period, and so could not be sustained. Gray on Perpetuities (2d Ed.) § 214, and cases there cited. Remainders, however, that should appear to be so limited as necessarily to vest in interest within the period limited by the rule would be valid, even though the actual payment and transfer to the beneficiary, the right to actual possession and enjoyment, might be postponed to a later period. Stone v. Forbes, 189 Mass. 163, 172, 75 N. E. 141; Loring v. Blake, 98 Mass. 253, 259; In re Appleby  1 Ch. 565; Chistie v. Gosling, L. R. 1 H. L. 779; Wainwright v. Miller  2 Ch. 255; Roberts, In re, 19 Ch. D. 520. Accordingly it becomes material to determine whether the interests here given in remainder were vested or contingent.
This question must be settled upon the fair construction of the language used by the testator, so as to ascertain and carry out the intent shown by the words he has used. Crapo v. Price, 190 Mass. 317, 76 N. E. 1042; Pearks v. Moseley, 5 App. Cas. 714, 719. That language has already been quoted and need not be repeated. It is in substance a direction to his trustees upon the death of any of his sons to pay his (son's) share of income to his widow, if any, during her widowhood; and upon the death of any of his daughters, to pay her share of income to her surviving husband, if any, for life, and upon the death of any of his children leaving no surviving widow or husband, or the death of any surviving husband or the death or marriage of any such widow, to pay or transfer a proportional share of the principal sum to the issue, if any, of his deceased son or daughter, and in default of such issue at the time of such decease or marriage, to pay or transfer such share to the heirs at law of such deceased son or daughter.
It has been argued that the, words "in default of such issue at the time of such decease or marriage" can refer only to the death of a child unmarried or of a surviving husband or the death or remarriage of a surviving wife; but we are of opinion that these words have a somewhat broader signification and must be taken to refer also to the death of a child of the testator, whether or not leaving a surviving husband or wife. It follows accordingly that the final limitation to the heirs at law of the respective children of the testator is also made to depend
upon either one of two separate and distinct events, first, the failure of issue at the death of the child, and, second, such failure at the death or marriage of the child's surviving husband or wife. That is, this part of the will must read as if the words had been, "and in default of such issue at the time of the decease of my sons or daughters, respectively, or of the decease of the surviving husband of any of my daughters, or of the decease or marriage of the widow of any of my sons, the same [share of the trust fund] shall be paid or transferred to the respective heirs at law of such my deceased son or daughter." Manifestly this is a limitation upon the happening of either one of the alternative events, which have been separated and distinguished by the testator himself. See the cases cited supra. The first of these events must happen, if at all, within the necessary limit of time; and it actually has so happened in the cases of John M. Whittemore, a son, and Mrs. Lucas and Mrs. Cowles, daughters of the testator, each one of whom has died, leaving respectively a wife or a husband, but no issue. In each of these cases, we are of opinion that the limitation to the heirs at law of the deceased child took effect and became vested upon the decease of that child, though subject in each case to be postponed as to actual possession and enjoyment until the termination by death or marriage of the life estate given to the surviving husband or wife. The doctrine was declared in this commonwealth by the case of Loring v. Blake, 98 Mass. 253. In the case of John M. Whittemore, the life estate of his widow came to an end in 1863 by her remarriage; in the cases of Mrs. Lucas and Mrs. Cowles, they came to an end respectively in 1904 and 1905, by the deaths of Edmund G. Lucas and John E. Cowles. Accordingly, the share of which John M. Whittemore, and after his death until her remarriage, Josephine P. Thwing received the income was properly distributed by the then trustees to his heirs at law in accordance with the directions of the will; and the shares of which Mrs. Cowles, and after her death John E. Cowles, and of Mrs. Lucas and after her death Edmund G. Lucas, received the income should now be distributed among the heirs at law of Mrs. Lucas and Mrs. Cowles respectively.
Three of the testator's children, Benjamin B. Whittemore, Joseph Whittemore, and Mrs. Ruggles, diéd, each leaving issue and also a surviving wife or husband. In each of these cases it remains to be determined whether the issue took at or before the death of their parent vested interests in proportionate shares of the fund, or whether their remainders were contingent only, and could not become vested until the subsequent death of the surviving husband or wife of their respective parents. If the remainders to the issue of these three children were vested prior to the death of their parent, or even if prior to that time they were contingent merely, but became vested upon the deaths of their respective parents, then it is evident, both as a matter of sound
reason and upon the authorities heretofore cited, that their interests not only did in fact vest, but of necessity must vest, before the period fixed by the rule against perpetuities, i. e., a life or lives in being and 21 years thereafter, could expire. In that event, it would not be necessary to determine whether the further limitation to the heirs at law of these children upon a failure of issue at the subsequent death or marriage of their surviving husbands or wives could take effect otherwise than by way of executory devise divesting the absolute interests that would already have become vested in such issue in favor of the heirs at law of their ancestor, and whether it would not thus be obnoxious to the rule against perpetuities and would have to be treated as void, or whether it could be maintained as a remainder vesting either at the death of the testator or at the respective deaths of these children. See as to this, besides other cases cited herein: Loring v. Blake, ubi supra; Dove v. Torr, 128 Mass. 38; Hancock, In re  1 Ch. 482. If the final limitation is valid, then a fortiori that which we are now considering must be sustained. If it is invalid, yet the rule is settled that an absolute bequest which once has vested in interest in the beneficiary will not be divested for the benefit of the testator's heirs at law merely because a subsequent limitation, which is intended to take effect either as an executory devise or by reducing in the contingency named the absolute interest previously given to a base fee, must fail of effect. Goodier v. Johnson, 18 Ch. D. 441. was said in Lovering v. Worthington, 106 Mass. 86, 83, "the general rule is that if a limitation over is void for remoteness, it places all prior gifts in the same situation as if the devise over had been wholly omitted. If the prior gift was in fee, the estate vests in the first taker discharged of the limitation over; if for life, it takes effect as a life estate." Sears v. Putnam, 102 Mass. 5. In the case at bar, the gift to the issue of these children, if a vested interest, is absolute, or in fee; if the final limitation over to the children's heirs at law was valid, yet it has not taken effect, for there was no failure of issue on the death of the surviving husband or wife; if the final limitation is invalid, it is simply to be disregarded, and the issue retain the absolute estate which has once vested in them. Brattle Square Church v. Grant, 3 Gray, 142, 156, 63 Am. Dec. 725. Accordingly, if by the proper construction of the will the remainders to the issue of the three last-mentioned children of the testator became vested interests either prior to or at the respective deaths of those children, then the further limitation to the heirs at law is simply to be disregarded, and the estates given to the issue remain absolute. Nor need we consider whether the issue of these children, each one of whom left a surviving husband or wife, took vested remainders before the deaths of their parents; for it is enough here if such remainders became vested at the time of such deaths. If Joseph Whittemore's son,
John St. Clair Whittemore, who died before his father, had such a vested interest, then upon his death leaving a daughter, his interest passed to and became vested in her. Lee v. Welch, 163 Mass. 312, 39 N. E. 1112; Jackson v. Jackson, 153 Mass. 374, 26 N. E. 1112, 11 L. R. A. 305, 25 Am. St. Rep. 643; Hills v. Barnard, 152 Mass. 67, 25 N. E. 96, 9 L. R. A. 211; Hall v. Hall, 140 Mass. 267, 2 N. E. 700; Campbell v. Stokes, 142 N. Y. 23, 36 N. E. 811. The issue takes per stirpes. Coates v. Burton (Mass.) 77 N. E. 311; Daggett v. Slack, 8 Metc. 450.
Did then the issue of these children take vested remainders at any rate upon the decease of their respective parents? It is a general rule of construction that when the language used by a testator is of doubtful import remainders will preferably be regarded as vested, unless a contrary intention is to be gathered from the provisions of the will. Minot v. Purrington (Mass.; Feb. 28, 1906) 77 N. E. 630; Bosworth v. Stockbridge, 189 Mass. 266, 75 N. E. 712, and cases there cited; Knowlton v. Sanderson, 141 Mass. 323, 6 N. E. 228; Minot v. Harris, 132 Mass. 528, 529; Dingley v. Dingley, 5 Mass. 535, 537. As was said by Knowlton, C. J., in Bosworth v. Stockbridge, ubi supra, "Hale v. Hobson, 167 Mass. 397, 45 N. E. 913; Harding v. Harding, 174 Mass. 268, 54 N. E. 549, and others cases relied upon by some of the respondents, are not departures from this rule: but they are cases in which the court found in the will evidence of a clear intention that the estate should not vest until the death of the life tenant." And it is to be observed that all the limitations here in question are to the direct descendants of the testator; a circumstance which has been deemed to warrant the inference that vested rather than contingent remainders were intended to be created. Gibbens v. Gibbens, 140 Mass. 102, 104, 3 N. E. 1, 54 Am. Rep. 453; Stanwood v. Stanwood, 179 Mass. 223, 60 N. E. 584; Bancroft v. Fitch, 164 Mass. 401, 41 N. E. 661. The rule is the stronger when the remainders limited would be void for remoteness if held to be contingent. Loring v. Blake, 98 Mass. 253, 260; Seaver v. Fitzgerald, 141 Mass. 401, 6 N. E. 73; Twiney, In re  2 Ch. 739, 747; St. John v. Dann, 66 Conn. 401, 34 Atl. 110; Post v. Hover, 33 N. Y. 593; McBride's Estate, 152 Pa. 192, 25 Atl. 513. A somewhat strained construction has sometimes been adopted. Taylor v. Frobisher, 5 De G. & Sm. 191; Bakeley v. Swinburne, 16 Sim. 275. But apart from any such general rule of construction we think it manifest that the intention of the testator was that the issue of his children should take a fixed and vested interest, at least at the time of the decease of their respective parents. Otis v. McLellan, 13 Allen, 339. It was expressly held in that case upon a limitation to issue postponed in actual payment in substantially the same manner as in the case before us until the
death of any surviving husband or wife, that the right of the issue vested in interest upon the death of the children of the testator, subject only to the life estate of any surviving husband or wife in the income. The mere fact that the actual payment and transfer to the issue is not to be made until the expiration of the previous life estate is not enough to control this intent. Otis v. McLellan, ubi supra. Evans v. Walker, 3 Ch. D. 211; Wainwright v. Miller  2 Ch. 255; Siddall's Estate, 180 Pa. 127, 36 Atl. 570.
Accordingly we are of opinion that the remainders severally limited to the issue of Benjamin B. Whittemore, Joseph Whittemore and Abbie E. Ruggles vested in such issue at the decease of their parents, though the right of present possession was postponed in each case until the expiration of an intervening life estate. Lombard v. Willis, 147 Mass. 13, 16 N. E. 737; Pike v. Stephenson, 99 Mass. 188; Bowditch v. Andrew, 8 Allen, 339. Not only is this construction in accord with the manifest intent of the testator and effectual to accomplish the object which he had in view, but the opposite construction "would defeat that purpose by creating a perpetuity which the law would not sustain. In such a case the court is bound to adopt that construction which will sustain the will and effectuate the objects of the testator." Loring v. Blake, 98 Mass. 253, 260; Galland v. v. Leonard, 1 Swanst. 161; O'Mahoney v. Burditt, L. R. 7, H. L. 388. In the cases in which the life estate has now terminated, the plaintiffs are therefore to be instructed that distribution is to be made to the issue of the testator's children, if any.
It has been argued in behalf of Mrs. Thwing that the distributions which were made by the then trustees upon her remarriage and the deaths of Thomas Whittemore, Otis T. Ruggles and Eliza Gifford of the four shares to the income of which they had respectively been entitled were erroneously made; but it has been found by the single justice before whom this case was heard that these distributions were all made in accordance with the directions of the will. It results from what has already been said that these distributions were properly made. Mrs. Thwing could have had no dower or interest in the nature of dower in real estate of which her husband had in his lifetime no present estate of inheritance. "A widow is not entitled to dower in a vested remainder. Eldredge v. Forrestal, 7 Mass. 253; Brooks v. Everett, 13 Allen, 457." C. Allen, J., in Watson v. Watson, 150 Mass. 84, 85, 22 N. E. 438. She cannot as doweress be regarded as an heir of her husband. Proctor v. Clark, 154 Mass. 45, 50, 27 N. E. 673, 12 L. R. A. 721. Nor has she the rights of a distributee, under the limitations of this will. Fabens v. Fabens. 141 Mass. 395, 399, 5 N. E. 650; Olney v. Lovering, 167 Mass. 446, 45 N. E. 766. Her deceased husband of course could not have been an heir at law of his brothers
and sisters who survived him. Even if Mrs. Thwing's rights had been disregarded in these distributions, it would be at least difficult to say that any errors in them could now be corrected, after they have been allowed by decrees of the probate court, which are found to have been made after proper notice. See Minot v. Purrington, 190 Mass. 336, 77 N. E. 630, and cases there cited. Nor is it necessary to consider how far any of the parties objecting to these distributions, which appear to have been made respectively in 1863, 1872, 1877, and 1898, are barred by laches from now sustaining objections to them, after having acquiesced in them since the times stated. Lindsey v. Fabens, 189 Mass. 329, 75 N. E. 623; In re Whittemore, 157 Mass. 46, 35 N. E. 93; Wagner v. Baird, 7 How. 234, 12 L. Ed. 681. It is necessary also to determine who are the persons entitled to take under the designation "heirs at law" of deceased children. In each of the cases in which such heirs take under the limitations of this will, they are necessarily to be determined at the death of the particular child in question. Dove v. Torr, 128 Mass. 38; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; International Trust Co. v. Williams, 183 Mass. 173, 66 N. E. 798. It is because the limitation in their favor must take effect at that time that its validity has been sustained in what has been said heretofore. And 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 persons whom they represent. This case comes under the rule of Clarke 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 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. Welch v. Brimmer, 169 Mass. 204, 47 N. E. 699; Olney v. Lovering, 167 Mass. 446, 448, 45 N. E. 766; Proctor v. Clark, 154 Mass. 45, 27 N. E. 673, 12 L. R. A. 721; Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671, 4 L. R. A. 215; Fabens v. Fabens, 141 Mass. 395, 5 N. E. 650; Merrill v. Preston, 135 Mass. 451; Rand v. Sanger, 115 Mass. 124, 128; Holbrook v. Harrington, 16 Gray, 102, 104; Daggett v. Slack, 8 Metc. 450,453. An apparently stronger statement of this doctrine in Loring v. Thorndike, 5 Allen, 257, turns upon the evident intention of the testator. 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