Baker v. Thompson

• Citation: 162 Mass. 40,37 N.E. 751
• Parties: BAKER et al. v. THOMPSON et al.
• Decision Date: 23 June 1894
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 40

37 N.E. 751

BAKER et al. v. THOMPSON et al.

Supreme Judicial Court of Massachusetts, Suffolk.

June 23, 1894

The will, as far as it relates to this suit, is as follows: "All the residue (which includes the property in controversy) and remainder of my property and estate, real and personal, of which I may die seised or possessed, or to which at the time of my decease I may be in any way entitled, I give, devise, or bequeath to my wife, Emily P. Eayrs, for her support, and for the support and education of our only child, Joseph Hearsey Eayrs, 2d. At her decease, all that shall then remain of my said property I give, devise, and bequeath to my said son, Joseph, to be held in trust till he shall arrive at the age of twenty-one years, to him, his heirs, executors, administrators, or assigns forever. My said wife, Emily P. Eayrs, is hereby authorized to sell and dispose of any real or personal estate which I may leave, either at public or private sale, as she may deem best."

COUNSEL

Willard Howland and Charles H. Innes, for demandants.

Nathaniel U. Walker, for tenants.

OPINION

MORTON, J.

It is true, as the defendant contends, that the words, "all the residue and remainder of my property and estate, real and personal, of which I may die seized or possessed, or to which at the time of my decease I may be in any way entitled, I give, devise, or bequeath to my wife, Emily P. Eayrs," if they stood alone, would give the wife an absolute fee. But they are qualified in the first place by the words which directly follow them, "for her support, and for the support and education of our only child, Joseph Hearsey Eayrs, 2d." In the next place, the will goes on to provide that what shall remain at the death of the wife shall go to the son, Joseph, "his heirs, executors, administrators, and assigns forever," showing plainly that it was not the intention of the testator to give her a fee. And lastly, in the concluding sentence of the residuary clause, the testator gives his wife power "to sell and dispose of any real or personal estate, either at public or private sale, as she may deem best," which would be unnecessary if he intended to give her a fee, and is inconsistent with an estate of fee simple. We think the ruling was right. See Chase v. Ladd, 153 Mass. 126, 26 N.E. 429; Kent v. Morrison, 153 Mass. 139, 26 N.E. 427. Judgment on the finding.