“The life tenant is entitled to the management, possession and control of the estate.”
How later courts described this case
- “The life tenant is entitled to the management, possession and control of the estate.”
Written by the judges who cited it.
The opinion
Dunn, C. J.
(dissenting in part).
After testator’s own death, his mother having predeceased him, the frame of his last will, which the Probate Court took proof and allowed, gave his property to his brother, Charles, for life, with re *182 stricted power of disposal. Testator does not provide a remainder, but merely disposes of one, should it exist, the devise being “to my legal heirs according to their legal rights,” in fee simple.
There is a remainder. The question for decision is whether testator’s intention, as expressed in his will, defines a limitation which, as it affects ascertainment of his “legal heirs,” excludes his brother, before of mention, who was indeed his only heir at law.
No words in the devise over enlarge, restrain or modify the technical words “legal heirs.” These words then are presumed to have been used in their judicially defined sense. Jacobs v. Prescott, 102 Me., 63, 65 A., 761 ; Houghton v. Hughes, 108 Me., 233, 79 A., 909 ; Morse v. Ballou, 112 Me., 124, 127, 90 A., 1091 ; Hay v. Dole, 119 Me., 421, 423, 111 A., 713 ; Hiller v. Loring, 126 Me., 78, 136 A., 350 .
A testator’s heirs — his will not plainly manifesting his different intent — are, by the general rules of construction, to be determined as of the day of his death. Brown v. Spring, 241 Mass., 565 , 135 N. E., 701 ; McCarthy v. Walsh, 123 Me., 157, 161, 122 A., 406 . In case of a devise of a remainder, after a life estate, to the heirs of the testator, the life tenant may take, even though such remainder may never come into the possession of the remainderman. Abbott v. Bradstreet, 3 Allen, 587 ; Minot v. Tappen, 122 Mass., 535 ; Chesman v. Cummings, 142 Mass., 65, 70 , 7 N. E., 13 ; Rotch v. Rotch, 173 Mass., 125, 130 , 53 N. E., 268 ; Cushman v. Arnold, 185 Mass., 165, 169 , 70 N. E., 43 ; Gardner v. Skinner, 195 Mass., 164, 166 , 80 N. E., 825 ; Brown v. Spring, supra; Forbes v. Snow, 245 Mass., 85, 91 , 140 N. E., 418 ; Ball v. Hopkins, 254 Mass., 347 , 150 N. E., 434 ; Carver v. Wright, 119 Me., 185, 189, 109 A., 896 . The life tenant would, in such an instance, have, besides his estate for life, a vested equitable remainder. In this, there would, in law, be nothing inconsistent or repugnant. Cushman v. Arnold, supra.
There was, to recur to the will here presented, a present gift. The gift over may well be held to have been to the brother, who, when testator died, became his sole heir, rather than to testator’s cousins, who, had his brother not survived him, would have been his heirs. Merrill v. Wooster, 99 Me., 460, 59 A., 596 ; Danforth v. Reed, 109 Me., 93, 96, 97, 82 A., 699 .