## Facts

- A testator devised three parcels of Massachusetts real estate to trustees.
- The trustees were to pay income to the testator’s daughter, Nancy Gay, for life.
- After Nancy’s death, the trustees were to pay income to Nancy’s children for their respective lives.
- As each of Nancy’s children died, the trustees were to convey the fee (or sell and distribute proceeds) to that deceased child’s “heirs at law.”
- The will granted trustees a power to sell and reinvest but did not require conversion of the real estate into personalty.
- Nancy had eight children; all survived the testator and Nancy.
- Following Nancy’s death, the trustees filed a bill in equity for instructions on construction of the will and proper distribution.

## Issues

1. Whether “heirs at law” identified the statutory heirs of each child as of the child’s death (words of purchase) or instead operated to vest a fee (or fixed remainder) earlier.
2. Whether the remainders to each child’s “heirs at law” were contingent until that child’s death or vested at an earlier time.
3. Whether, given only a power (not a direction) to sell, sale proceeds should be treated as retaining the character of realty when determining “heirs at law.”

## Decision

- The court instructed that Nancy took a life interest in income, followed by life interests in income for Nancy’s children.
- On the death of each child, that child’s share was to pass to the persons who were then the child’s statutory “heirs at law,” determined at the child’s death.
- The remainders to “heirs at law” were contingent until the relevant child died because the takers could not be ascertained earlier.
- Because the will conferred only a power to sell and not an imperative direction to convert, any sale proceeds were to be treated as realty for purposes of identifying the “heirs at law” until distribution to those ultimately entitled.

## Legal Principles

- A limitation over to the “heirs at law” of a life beneficiary is generally construed as a gift to those heirs as purchasers, to be ascertained at the life beneficiary’s death, rather than as words enlarging the life beneficiary’s estate.
- Where beneficiaries are identified as the “heirs” of a person at that person’s death, the remainder is contingent until the death occurs because the class membership cannot be fixed earlier.
- A mere power in trustees to sell and reinvest does not effect equitable conversion; proceeds of any sale retain the character of realty until they reach one entitled to take the property absolutely.

## Conclusion

The court construed the will as creating successive life interests for Nancy and her children, with contingent remainders to each child’s “heirs at law” determined at the child’s death, and instructed that sale proceeds remained treated as realty absent a mandatory direction to convert.


Lovering v. Worthington, 106 Mass. 86 (Mass. 1870)