Torrance, J.
In July, 1891, Joseph Mullen, domiciled in the town of Stafford in this State, died intestate, leaving the plaintiff as his widow, and one minor child. The plaintiff and the deceased intermarried prior to 1877, and said child is the issue of the marriage.
At the time of his death, Joseph Mullen was a member of “ The Bay State Beneficiary Association ” of Westfield, Massachusetts, a corporation organized under the laws of that State, “ for the purpose of providing Benefit and Protection to its members “and their families.” He became a member thereof in 1882, while domiciled in the State of Massachusetts, where he and his family continued to reside for some years afterwards. By the certificate of membership issued [246]*246to him by said Association, he was constituted a member thereof; and in said certificate the Association agreed “ to pay to the ‘heirs-at-law’ of said member, in sixty days after due proof of the death of said member, a sum equal to the amount received from one death assessment, but not to exceed five thousand dollars.”
Within sixty days after his death, said Association paid to the defendant Reed, as the guardian of said minor child, the sum of five thousand dollars in full of the amount due under said certificate, and he now holds the same as such guardian. The present action was brought by the plaintiff, the widow of Joseph Mullen, against said guardian to recover a portion of said insurance money.
The defendant Reed demurred to the complaint because it did not appear therein “ that the plaintiff is an heir-at-law of the said Joseph Mullen or that she is entitled to any part of said insurance money.”
The court overruled the demurrer, and subsequently, after the administrator of Joseph Mullen had been cited in as a party, and “ after a full hearing ” no answer having been filed in the case, rendered judgment that the widow recover of the defendant Reed one third of the insurance money to? gether with costs of suit.
From that judgment Reed, as guardian of the child, took the present appeal, alleging as reasons of appeal, that the court erred in overruling the demurrer, and in deciding that the plaintiff was entitled to one third of the money. It does not appear that the administrator makes any claim to the insurance money or any part thereof or that he took any part in this suit. There is really but one question before us upon this appeal, and that is whether the widow is entitled to one third of the insurance money.
By a written agreement signed by the counsel for both parties, filed in the court below after the present appeal was taken, and printed with the record, the plaintiff attempts to bring up the question whether the widow is or is not entitled to one half rather than one third of the insurance money, if she is entitled to any; but this .agreement is no part of the [247]*247record in any proper sense, and it nowhere appears upon the record, as required by the statute (§ 1185) that this question was raised on the trial below and decided adversely to the plaintiff. That question is therefore not properly before us, and for this reason we decline to consider it.
The question, then, is whether the widow is entitled to one third of the insurance money; and its solution depends upon the construction of the words “heirs at law” contained in the certificate of membership under which the money was paid over to the guardian of the minor child.
What do these words “ heirs at law ” mean in this certificate? Do they include or exclude the widow ? Under these words the guardian claims the entire sum for the minor child, and the widow claims a share of it under the same words.
The question of course is, what was intended by these words at the time they were put into this certificate ;• and this is to be ascertained from the words used to express the intention, when read in the light of all the circumstances under which they were used. In ascertaining their meaning it must be borne in mind that the contract embodied in the certificate was made in Massachusetts, by parties domiciled or located there; that it was undoubtedly made with reference to the law of that State alone; and that both by its terms and by the understanding of the parties it was to be performed there. This being so, the general rule is that it should be construed and interpreted according to the laws of that State. Smith v. Mead, 3 Conn., 253; Philadelphia Loan Co. v. Towner, 13 id., 249; Koster v. Merritt, 32 id., 246. “ For purposes of construction, it is always legitimate to consider the time when, and the circumstances in which, the will was made, and we think the law under which it was made is one of those circumstances.” Staigg v. Atkinson, 144 Mass., 564. This principle is we think equally applicable to an instrument like this certificate.
We therefore think the words “heirs-at-law” in this instrument ought to be construed by us as they would be by the courts of Massachusetts, if this certificate was before them for construction upon this point; and as we understand [248]*248the matter, the courts of that State, in cases where the words “ heirs at law ” are used in an instrument disposing of personal property alone, have quite uniformly construed them as meaning those persons who are entitled to take under the statute of distributions, unless there is something in the context to indicate a contrary intention. Houghton v. Kendall, 7 Allen, 72; Sweet v. Dutton, 109 Mass., 589; White v. Stanfield, 146 Mass., 424; Kendall v. Gleason, 152 Mass., 457. And not only this, but the courts of that State have held that the words “ heirs at law,” when used in such an instrument, indicated an intent that such persons are to take in the same manner and in the same proportions as if the property had come to them as intestate estate, unless a contrary intention appears. Thus in Houghton v. Kendall, supra, the court says:
“ In this Commonwealth we find no authority which would conflict with the adoption of the construction which seems to us reasonable, that when the word ‘heirs’ is used in the gift of personalty, it should primarily be held to refer to those who would be entitled to take under the statute of distributions, and to indicate that they should take in the same manner and in the same proportions as if it had come to them as intestate estate of the person whose ‘heirs’ they are called.” See also Bassett v. Granger, 100 Mass., 348; Rand v. Sanger, 115 Mass., 124.
The rules of construction thus applied in that State in the eases dted, do not probably differ materially if at all from those that would he applied under similar oiromn-, stances by the oourts of this State. In both, the principal object is to ascertain the intention of the parties from the words used to express it j in both, the word “ heirs ” will be giyen its strict, primary, technical meaning, if auoh ap-. pears to have been the intention of the parties; and in both, it will be given its more comprehensive and popular mean-, |ng if it appears to have been used in that sense, Sweet v. Dutton, 109 Mass., 589; Leake v. Watson, 60 Conn., 498-506.
Under the laws of Massachusetts at the time when this certificate was issued, if an intestate left a widow and-issue, [249]
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Torrance, J.
In July, 1891, Joseph Mullen, domiciled in the town of Stafford in this State, died intestate, leaving the plaintiff as his widow, and one minor child. The plaintiff and the deceased intermarried prior to 1877, and said child is the issue of the marriage.
At the time of his death, Joseph Mullen was a member of “ The Bay State Beneficiary Association ” of Westfield, Massachusetts, a corporation organized under the laws of that State, “ for the purpose of providing Benefit and Protection to its members “and their families.” He became a member thereof in 1882, while domiciled in the State of Massachusetts, where he and his family continued to reside for some years afterwards. By the certificate of membership issued [246]*246to him by said Association, he was constituted a member thereof; and in said certificate the Association agreed “ to pay to the ‘heirs-at-law’ of said member, in sixty days after due proof of the death of said member, a sum equal to the amount received from one death assessment, but not to exceed five thousand dollars.”
Within sixty days after his death, said Association paid to the defendant Reed, as the guardian of said minor child, the sum of five thousand dollars in full of the amount due under said certificate, and he now holds the same as such guardian. The present action was brought by the plaintiff, the widow of Joseph Mullen, against said guardian to recover a portion of said insurance money.
The defendant Reed demurred to the complaint because it did not appear therein “ that the plaintiff is an heir-at-law of the said Joseph Mullen or that she is entitled to any part of said insurance money.”
The court overruled the demurrer, and subsequently, after the administrator of Joseph Mullen had been cited in as a party, and “ after a full hearing ” no answer having been filed in the case, rendered judgment that the widow recover of the defendant Reed one third of the insurance money to? gether with costs of suit.
From that judgment Reed, as guardian of the child, took the present appeal, alleging as reasons of appeal, that the court erred in overruling the demurrer, and in deciding that the plaintiff was entitled to one third of the money. It does not appear that the administrator makes any claim to the insurance money or any part thereof or that he took any part in this suit. There is really but one question before us upon this appeal, and that is whether the widow is entitled to one third of the insurance money.
By a written agreement signed by the counsel for both parties, filed in the court below after the present appeal was taken, and printed with the record, the plaintiff attempts to bring up the question whether the widow is or is not entitled to one half rather than one third of the insurance money, if she is entitled to any; but this .agreement is no part of the [247]*247record in any proper sense, and it nowhere appears upon the record, as required by the statute (§ 1185) that this question was raised on the trial below and decided adversely to the plaintiff. That question is therefore not properly before us, and for this reason we decline to consider it.
The question, then, is whether the widow is entitled to one third of the insurance money; and its solution depends upon the construction of the words “heirs at law” contained in the certificate of membership under which the money was paid over to the guardian of the minor child.
What do these words “ heirs at law ” mean in this certificate? Do they include or exclude the widow ? Under these words the guardian claims the entire sum for the minor child, and the widow claims a share of it under the same words.
The question of course is, what was intended by these words at the time they were put into this certificate ;• and this is to be ascertained from the words used to express the intention, when read in the light of all the circumstances under which they were used. In ascertaining their meaning it must be borne in mind that the contract embodied in the certificate was made in Massachusetts, by parties domiciled or located there; that it was undoubtedly made with reference to the law of that State alone; and that both by its terms and by the understanding of the parties it was to be performed there. This being so, the general rule is that it should be construed and interpreted according to the laws of that State. Smith v. Mead, 3 Conn., 253; Philadelphia Loan Co. v. Towner, 13 id., 249; Koster v. Merritt, 32 id., 246. “ For purposes of construction, it is always legitimate to consider the time when, and the circumstances in which, the will was made, and we think the law under which it was made is one of those circumstances.” Staigg v. Atkinson, 144 Mass., 564. This principle is we think equally applicable to an instrument like this certificate.
We therefore think the words “heirs-at-law” in this instrument ought to be construed by us as they would be by the courts of Massachusetts, if this certificate was before them for construction upon this point; and as we understand [248]*248the matter, the courts of that State, in cases where the words “ heirs at law ” are used in an instrument disposing of personal property alone, have quite uniformly construed them as meaning those persons who are entitled to take under the statute of distributions, unless there is something in the context to indicate a contrary intention. Houghton v. Kendall, 7 Allen, 72; Sweet v. Dutton, 109 Mass., 589; White v. Stanfield, 146 Mass., 424; Kendall v. Gleason, 152 Mass., 457. And not only this, but the courts of that State have held that the words “ heirs at law,” when used in such an instrument, indicated an intent that such persons are to take in the same manner and in the same proportions as if the property had come to them as intestate estate, unless a contrary intention appears. Thus in Houghton v. Kendall, supra, the court says:
“ In this Commonwealth we find no authority which would conflict with the adoption of the construction which seems to us reasonable, that when the word ‘heirs’ is used in the gift of personalty, it should primarily be held to refer to those who would be entitled to take under the statute of distributions, and to indicate that they should take in the same manner and in the same proportions as if it had come to them as intestate estate of the person whose ‘heirs’ they are called.” See also Bassett v. Granger, 100 Mass., 348; Rand v. Sanger, 115 Mass., 124.
The rules of construction thus applied in that State in the eases dted, do not probably differ materially if at all from those that would he applied under similar oiromn-, stances by the oourts of this State. In both, the principal object is to ascertain the intention of the parties from the words used to express it j in both, the word “ heirs ” will be giyen its strict, primary, technical meaning, if auoh ap-. pears to have been the intention of the parties; and in both, it will be given its more comprehensive and popular mean-, |ng if it appears to have been used in that sense, Sweet v. Dutton, 109 Mass., 589; Leake v. Watson, 60 Conn., 498-506.
Under the laws of Massachusetts at the time when this certificate was issued, if an intestate left a widow and-issue, [249]*249the widow was entitled to one third of the residue of the personal property; if he left a widow and no issue the widow took the whole residue of personalty to the amount of five thousand dollars, and one half of the excess of the residue of such property above ten thousand dollars. Public Statutes of Mass. 1882, Chap. 135, p. 770, Sec. 3. If, then, this certificate is to be construed as the courts of Massachusetts would probably construe it, and we think it should be, it follows that the words “ heirs at law ” must be held to include the widow; and that she is entitled to one third of the insurance money under the certificate, because that is the share of this money she would take under the laws of that State.
The result thus reached is also, we think, in accordance with the actual intent of Joseph Mullen, so far as the same can be ascertained from the certificate read in the light of the circumstances under which it was made, as they appear of record, and without reference to the rule we have been considering. The certificate is in the nature of a contract of insurance. The money to become due on it, under the laws of Massachusetts, Supp. to the Pub. Stat., p. 811, § 15, as appears of record, could not be taken by creditors, and it is fair to presume that this was known to the deceased at the time the certificate was issued. If so, there would be the further presumption that he thus intended to create a fund for the benefit of his family primarily, and not for the benefit of his creditors, or his estate ; a fund that would go to the members of that family living at the time of his death, not as a part of his estate, but directly by force of the certificate.
He designated the class who were to take as beneficiaries, by the words “heirs at law; ” and it is a fair presumption that he used those words for this purpose, in view of the uniform meaning which had been given to them in instruments of a nature similar to this certificate, by the courts of Massachusetts. In short, from the certificate itself, read in the light of the circumstances under whioh it was made, we think it is fair to conclude that Joseph Mullen used the [250]*250words “heirs at law” in their popular sense, as meaning those persons who would take his intestate personal property under the statute of distributions of the State of Massachusetts, and that under them, consequently, he meant to include his widow.
The money due upon the certificate at the time of his death formed no part of his estate, but belonged to the beneficiaries. It nowhere appears that the deceased had the power to substitute other beneficiaries in place of the class first designated; and if he had, it is quite certain that he never exercised it. This certificate, then, was in effect a valid agreement, on the part of the association, to pay the money to become due under its provisions, to the beneficiaries designated therein. When due, the money certainly belonged to them and not to the estate of the deceased. Conn. Mutual Life Ins. Co. v. Burroughs, 34 Conn., 305; Continental Life Ins. Co. v. Palmer, 42 Conn., 60; Masonic Aid Asso. v. Jones, 154 Pa. St., 99.
There is no error apparent upon the record.
In this opinion the other judges concurred.