Sweet v. Dutton.

vey or change the mode of investment of all or any part of said property, both real and personal, as he may in his judgment see fit, and execute all needful papers, under seal or otherwise, and invest the proceeds of the same as he may deem best; to have and to hold said proceeds so invested in trust, in the same manner and on the same terms as aforesaid." "The said Charles A. Sweet agree: to keep an account of said property, a schedule of which, as at present constituted, is hereunto annexed and marked A;" that the schedule annexed contained only bonds, railroad stock and bank stock; that the plaintiff took possession of the property therein described, and still holds the same; that Martha G. Sweet was afterward married to the defendant Horace Dutton, and died intestate June 25, 1871, leaving an infant child, Martha S. Dutton, the other defendant. The prayer was for instructions as to whether the trust property belonged to the husband or the child.

H. G. Parker, for Horace Dutton.

R. D. Smith, for the guardian ad litem of Martha S. Dutton.

CHAPMAN, C. J. By an indenture made between the plaintiff and his daughter, Martha G. Sweet, on December 24, 1868, she conveyed to him in trust all her property, to be held by him during her life, and to pay the income to her, free from the control and interference of any future husband she might have. Upon her death he was to pay over and transfer all the property in his hands to such person as she should by her last will or other instrument in writing appoint, and in default of such will or appointment, then to convey and pay over the said trust property to her heirs at law. The instrument purports to convey "all the property, both real and personal, of which I am now seized or to which I am in any way entitled, either in law or equity." A schedule of the property is annexed to the instrument, consisting of bonds, railroad stocks and bank stocks; and this is the only property which the plaintiff now holds. She was married to the defendant, Horace Dutton, and died on June 25, 1871, leaving her husband and an infant daughter. The object of the bill is to ascertain which of these persons is entitled to the property. If it were real estate, it would go to the daughter as heir; but the husband contends that, being personalty, it goes to him as distributee.

VOL. XII.-94

Sweet v. Dutton.

The meaning of the word "heirs" in a bequest of personal property has been much discussed in the cases cited, and in other cases cited in the text-books referred to. In Gittings v. M'Dermott, 2 Myl. & K. 69, and in some other English cases, it is said that the construction of the word must be governed by the nature of the property. In many cases this may be so, but not in all. The more comprehensive rule is, that it must be governed by the intent of the testator; and if his intent appears to be to designate those who are strictly his heirs in the primary sense of the term, and not distributees, it must be so construed; as in De Bouvoir v. De Bouvoir, 3 H. L. Cas. 524, and In re Rootes, 1 Drew. & Sm. 228, and other cases. This court so held in Clarke v. Cordis, 4 Allen, 466, 480. See also Loring v. Thorndike, 5 id. 257. But in Houghton v. Kendall, 7 id. 72, the court said that, when the word "heirs" is used in a gift of personalty, it should primarily be held to refer to those who would be entitled to take under the statute of distributions.

If, then, the instrument before us were a will, the word "heirs" ought, according to the whole course of the authorities, to be construed as meaning distributees, there being nothing to indicate a different meaning. The instrument, however, is not a will, but a transfer of personal property; and no authority has been cited, where the word has been used in such an instrument except in its primary signification. The question then arises, whether the extended signification is to be limited to wills. We think it is not. In Morton v. Barrett, 22 Me. 257, 264, it is said that, to carry into effect the intent of the testator, the word "heirs" should be construed to mean heirs apparent, or children, or those entitled under the statute of distributions; and in Mace v. Cushman, 45 id. 250, 261, it is said that, in the common use of language, the children of a deceased intestate leaving personal property would be called his heirs, and such term would be justified by the definitions of the word heirs" by lexicographers, but technically they would not take as heirs, but as distributees. In that case, the court held that the word was intended to mean the persons who were entitled to the property of the deceased according to the laws in force. The courts have extended its meaning in construing wills, because they found that testators so used it. Testators are apt to use words n a new sense, different from their original and technical meaning, when such new meaning has come into common use; and when it comes into common use, it is often adopted in other instruments

Sweet v. Dutton.

According to Mace v. Cushman, cited above, this new meaning of the word "heirs," in arplication to personalty, has acquired a proper place in lexicography. This is according to the common course of change that is constantly going on in living languages.

In view of these circumstances, we think it is to be presumed that in this instrument the parties used the word in the same sense in which they would have used it in a will, and that the property should go to the distributee.

Decree accordingly.

INDEX.

ACCESSION.

See SALE, 187.

ACCRETION.

Bule as to the division of alluvial accretion. Bachelder v. Keniston (N. H.)
143.

ACTION.

1 Declaration that defendant, the teacher of a high school, was requested by
the school committee, whose own duty it was, to examine candidates for
admission to such school and report upon their qualifications, that he un-
dertook the duty, that plaintiff was examined and found qualified, but that
defendant falsely and maliciously reported against him and he was ex
cluded from the benefits of the school. On demurrer held, (1) that the decla
ration was good; (2) that the confidence reposed in the defendant by the
committee to examine candidates, and his acceptance of the trust, created
sufficient legal consideration to make it a duty to faithfully perform the
same. Hammond v. Hussey (N. H.), 41.

2. The owner of one part of a building has no action to recover damages at
law for the willful neglect of the owner of the other part in permitting
his part to become ruinous and fall into decay, whereby the plaintiff's part
is injured. Pierce v. Dyer (Mass.), 716.

ADJOINING OWNERS.

See ACTION, 716.

AGENCY.

1. Where one undertakes, voluntarily and without compensation, to perform
an act requiring the trust and confidence of another, he is responsible for
willful and malicious fraud in connection with the undertaking. Ham-
mond v. Hussey (N. H.), 41.

8. An agent had authority to sell goods on commission for his principal; but
no authority to sell otherwise than for cash. He did sell on credit and the
goods were sent marked C. O. D. The carrier delivered the goods, with-
out receiving the cash, on the written order of the agent. Held, that the
carrier, who knew of the authority of the agent to sell, was not affected by
the limitation of which he had no notice, and that the mark C. O. D. did
not put him on inquiry, as a matter of law, but was a question to be deter.
mined by the jury. Daylight Burner Co. v. Odlin (N. H.), 45.

8. Authority of officers of a bank to release its creditors without payment

Cochecho National Bank v. Haskell (N. H.), 67.