Horton v. Earle

38 N.E. 1135, 162 Mass. 448, 1894 Mass. LEXIS 102

• Court: Massachusetts Supreme Judicial Court
• Decided: November 30, 1894
• Status: Published

Opinion

Field, C. J.

This is a petition to the Probate Court for the construction of a will, and although the procedure in that court was not according to the rules of pleading and procedure in equity causes, it appears that all persons interested appeared and were heard, and they have been heard in this court on appeal, both by a single justice and the full court. See Green v. Hogan, 153 Mass. 462.

The particular clause in the will of Sarah B. Horton to be construed is as follows: “All the rest and residue of my property and estate, both real and personal, wherever and whatever the same may be, I give, devise, and bequeath to Hiram Horton and Nathaniel B. Horton, to be equally divided between them, share and share alike to them and their heirs and assigns.” Hiram Horton died before the testatrix, and he was the brother of the deceased husband of the testatrix, but not otherwise any relation of the testatrix. He was not, therefore, a relation of the testatrix within the meaning of Pub. Sts. c. 127, § 23. Kimball v. Story, 108 Mass. 382.

This residuary legacy is not to a class, but to two persons by name, and the effect of it is that one half of the residue is given to one person by name, and one half to the other. Workman v. Workman, 2 Allen, 472. Claflin v. Tilton, 141 Mass. 343. The addition of the words “ and their heirs and assigns,” only shows that the whole property in the residue was given absolutely, or so far as it was real property that it was given in fee, if the testatrix owned a fee. Hiram Horton having died before the testatrix, the legacy to him lapsed. Kimball v. Story, 108 Mass. 382. Wood v. Seaver, 158 Mass. 411. Bryson v. Holbrook, 159 Mass. 280. Decree affirmed.