Judgment of the Court
J.-On the 4th of August, one Charles Palmer Thompson made his will, the clauses in question upon this appeal being as follows:- I further will and desire that the profits of and the interests in any of the property or estate, real or personal, that I may be possessed of at the time of my decease shall be enjoyed solely by my beloved wife Lissy Thompson and my beloved daughter Mary Anna Sedgewick.
Thompson, the profits and interests thereof and therein to be equally divided, share and share alike between my said beloved wife Lissy Thompson and my said beloved daughter Mary Anna Thompson during their natural lives.
I do further will and desire that in the event of the death of either of the above named Lissy Thompson or Mary Anna Thompson, the residue of my property, real or personal, shall be enjoyed by and go to the benefit of the survivor.
I do further will and desire that at the decease of both the said Lissy Thompson and Mary Anna Thompson, the said residue of my real and personal property shall be enjoyed and go to the benefit of my lawful heirs.
The effect of this was to give to his wife and daughter a life estate during their joint lives, and an estate for life to the survivor with remainder in fee to the heirs of the testator whoever they might be. Both devisees survived the testator, the widow dying in 1878, and the daughter in 1893, she having married the defendant Joseph Smith, but dying without issue.
The controversy is between the nephews and nieces of the testator claiming the property as his heirs, and the defendant Joseph Smith claiming it as the devisee of his wife, the only daughter of the testator, and the question is: Did the deceased intend to exclude and did he succeed in excluding his daughter from the class described in the will as " my lawful heirs"'? The contention of the plaintiffs is that those only were his "lawful heirs" who would have been so had he survived his wife and daughter.
I take it to be reasonably clear that this contention cannot prevail.
The rule established in Bullock v. Davies (1), is that where in a case like the present the (1) 9 H. L. Cas. 1.
testator uses the word "heirs," he must be taken to mean heirs at the time of his death unless the contrary contention is apparent from the will. This rule was subsequently followed and applied in Mortimore v. Mortimore and in Re Ford; Patten v. Sparks I do not see in this will any intention expressed or implied to exclude the daughter from the class entitled to the fee.
The testator's object seems to have been to provide immediately for his wife and daughter during their lives, leaving the property upon the death of the survivor to descend to his heirs whoever they might be as in the case of intestacy.
There is not any indication of an intent to exclude his daughter, or to prefer his collateral relatives to her. On the contrary he seems intentionally to have been silent as to the particular persons who were to take upon the determination of the life estates. On the whole I am of opinion that the appeal should be dismissed and with costs.
Appeal dismissed with costs.