Reference:
http://books.google.com/books?id=x_M7AAAAIAAJ&pg=PA825&dq=%22richard+s+fay%22+testate&hl=en&ei=HQKvTsntC-bh0QHtxfmSDw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CC8Q6AEwAA#v=onepage&q&f=false
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GARDINER et al. v. FAY et aL
(Supreme Judicial Court of Massachusetts.
Middlesex. Jan. 8, 1903.)
TRUST DEED—CONSTRUCTION-HEIRS—TIME
OF DETERMINATION.
1. A trust deed required the income to be paid to a certain person and his wife during their lives and the life of the survivor, and after his or her death to their "joint heirs" in the same way or manner that "intestate «states are divided at law." Held, that "joint heirs" meant the heirs of both at the time of the death of the survivor.
Case reserved from supreme judicial court, Middlesex county; Wm. Caleb Loring, Judge.
Bill In equity by Robert H. Gardiner and another, as trustees, against Dudley B. Fay and others, for a construction of the deed of trust. Deed construed.
Roland Gray, for Daniel B. Fay and others. Francis R. Bangs and Arthur D. Hill, for respondents.
KNOWLTON, C. J. The plaintiffs are trustees under a deed which conveyed real estate in trust, to permit Richard S. Fay and Catharine S. Fay, his wife, to occupy and improve it, or to receive the rents and profits of it "during their joint lives and the life of the survivor, and after his or her death to convey the same in fee to the Joint heirs of said Richard and Catharine in the same way or manner as intestate estates are divided at law; and in case there are no joint heirs of said Richard and Catharine, then to the heirs of the survivor; it being further understood, however, that said Richard and Catharine, or the survivor, may, by a declaration of trust in writing, or by letters testamentary, continue said estate in trust for the benefit of their heirs at law, as before named," etc. Richard S. Fay died on May 6, 1865, and Catharine S. Fay on November 26, 1901. They had four young children at the date of the deed, of whom one survived at the decease of Catharine. At the time of her death she also had numerous grandchildren.
The only question now left for the consideration of the court is, What is the meaning of the words "joint heirs," In reference to the time as of which the heirs are to be determined? The word "heirs" is a legal term, to be construed according to its strict technical import, .unless there is something in the context to control the meaning. Clarke v. Cordis, 4 Allen, 466-480. Sometimes it means children or issue, where it is plain that it is used in a popular sense, as a word of description referring to a certain class of persons. But in a deed where there is no reason to depart from the technical meaning, it is given its usual legal signification. The joint heirs of Richard and Catharine are the persons who are the heirs of both of them. In the ordinary signification of the word "heir", no one could be an heir of Catharine before her death. Xeino est hoores viventis. Richardson v. Wheatland, 7 Mete. 169; Houghton v. Kendall, 7 Allen, 72-75; Putnam v. Gleason, 99 Mass. 454; Putnam v. Storey, 132 Mass. 205-210; Wason v. Ranney, 167 Mass. 159, 45 N. E. 85. The foregoing cases go far toward settling the case at bar. The joint heirs of Richard and Catharine are the heirs of both at the death of the survivor. Their joint heirs could not be determined before that time, for one who died before the death of the survivor would uot be his or her heir. The words, "in case there are no joint heirs of said Richard and Catharine, then to the heirs of the survivor," have a clear and natural meaning, on the theory that the joint heirs are to be determined as of the time of the death of the surviving life tenant; for the words "joint heirs" would mean descendants then living. and, If there were none, the property would go to collateral heirs of the survivor. But they are Inapplicable to the facts with the other construction; for there were four children living at the date of the deed, and upon the other theory they, and any others who might come into being, would be considered joint heirs within the meaning of the deed, and there could not be a condition which would make the quoted words applicable. The words, "In the same way or manner as intestate estates are divided at law," mean that the children of a deceased child take their parent's share by right of representation. This provision is given its natural meaning if joint heirs are determined as of the time of the death of the survivor. But if the other construction is adopted, the remainder at the death of the surviving life tenant would be all vested In the living children, and the heirs, devisees, or assigns of the deceased children. It would be Impossible to apply the rule of distribution of intestate estates, since no grandchild could take directly as one of the joint heirs of the life tenants. The vested interests of deceased children would all have passed to their devisees, assigns, or heirs.
The trust property is to be conveyed to Dudley B. Fay, Richard S. Pay, Edward H. Fay, Katharine Fay, Richard Fay Parker, Augustine H. Parker, and Katherlne Everett, and William E. Stone and William F. Wharton, trustees under the deed of Henry M. Parker, In the shares and proportions to which they are severally entitled as heirs of Richard S. Fay and Catharine S. Fay, taking by right of representation, and as grantees under the deed of Henry M. Parker.
So ordered.
I guess everyone has wanted this property, yet by some miracle much of it has remained untouched...so every spring, with their evolutionary memory, the birds return and have been blessed to find it in the same shape as when they left it. They can find an old nest and reconstruct it, or build a new nest; the trees are still there--supplying seeds and nuts for food; the mosses and lichen are still there for nesting materials; the tadpoles, frogs, toads, worms, snakes are still there for large birds to eat and feed their offspring; the bats come out of hibernation seeking food--thankfully there are lots of water sources for bugs in which to breed--the bugs are a source of food for the endangered bats; the blueberries and raspberries will ripen as a food source. It's all so complex, but their needs are simple. Please let's not destroy it.
ReplyDeleteThink about what their return would have been like if Lowe's/WalMart, etc. had begun the clearing, blasting, bulldozing and leveling. There really aren't many places left for migratory birds to find alternate territory.
That this area has stayed the same for decades somehow gives me hope that it will remain so--it is too important as a wildlife habitat and loved for generations by so many children and adults.