
    Thomas G. Coffin & another, trustees, vs. Helen M. Jernegan & others.
    Dukes County.
    October 24, 1905.
    November 28, 1905
    Present: Knowxton, C. J., Lathkop, Loring, & Summon, JJ.
    
      Devise and Legacy, Construction. Words, “ Heirs at law.”
    A testator bequeathed a fund to trustees for the support of his daughter during her life, and provided that the fund in their hands at the time of his daughter’s death, if his daughter had made no will, should go “ to her heirs at law.” The daughter died intestate. Eeld, that the property went to the heirs at law of the daughter, who could be ascertained only at the time of her death, and not to those who would have been her heirs at law had she died when the testator did.
    The following statement of the ease is taken from the opinion of the court:
    This case comes up on an exception taken to a ruling made by a single justice in a probate appeal.
    John Mayhew left the residue of his estate to trustees in trust for the comfortable support and maintenance of his daughter during her life. She had been married and divorced, and was then insane. After giving instructions at great length for her support he directed that the trustees should “upon the death of my said daughter provide a suitable stone for her grave, and cause a suitable inscription appropriate to her to be carved upon the family monument, and make over so much of said estate and its accretions as is then in their hands, after the payment of bequests and devises as hereinbefore provided, to my said daughter’s executor for the benefit of such persons as she shall nominate in her will, if she shall have made a will being competent thereto, or in default of such will to her heirs at law.” The trust estate consisted of personal property onty, and his daughter died intestate, without having had a child. When John Mayhew died, the daughter had no next of kin on her father’s side. On her mother’s side she had an aunt, Dencie Mudgett, and two uncles, Thomas and Jared Jernegan. Jared died before the daughter, and Dencie Mudgett died after the daughter.
    It was held in the Probate Court that the estate should be divided between the administrator of Dencie Mudgett and Thomas Jernegan, being the next of kin of the testator’s daughter under R. L. c. 133, § 1, cl. 6.
    From this decree an appeal was taken by the children of Jared Jernegan to this court. At the trial of this appeal the appellants asked for this ruling: “In the above entitled case the appellants. request the court to rule as matter of law that the next of kin or heirs at law of D. Anna Mayhew were the next of kin, or heirs at law of said D. Anna Mayhew at the time of the death of John Mayhew, deceased, testate.” “ The court refused so to rule, but affirmed the decree of the Probate Court.” The case is here on an exception to “said refusal so to rule.”
    
      E. S. Clinch (of New York) & J. N. Pierce, for the respondents.
    
      R. F. Raymond & S. Keniston, for the petitioners, were not called upon.
   Loring, J.

[After the foregoing statement of the case.] The ruling was refused rightly. The appellants have argued that there is nothing in the will showing more affection for the aunt and uncle who survived than for the uncle who died. But the interpretation of John Mayhew’s will does not depend upon that. It depends upon the interpretation of the words which he used to express his intention. Of the meaning of these words there can be no doubt. The gift over is to the heirs at law of the beneficiary for life, not to the persons who would have been her heirs at law if she had died when the testator did, as the appellants ask us to interpret them. See Richardson v. Wheat-land, 7 Met. 169 ; Putnam v. Story, 132 Mass. 205, 210.

Exceptions overruled.  