Brennan v. Brennan

• Decision Date: 19 May 1904
• Parties: BRENNAN et al. v. BRENNAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 560

71 N.E. 80

BRENNAN et al. v. BRENNAN.

Supreme Judicial Court of Massachusetts, Middlesex.

May 19, 1904

COUNSEL

H. H. & H. J. Winslow and Jas. D. Hill, for tenant.

Jas. J McCarthy and Wm. J. O'Donnell, for demandants.

OPINION

MORTON, J.

This is a writ of entry to recover a certain parcel of land, with the buildings thereon, situated in Cambridge, to which the demandants claim title as heirs at law and next of kin of one Maria J. Day. The tenant is a brother of the demandants, and is in possession, and claims title to the premises as devisee under the will of said Maria J. Day which has been duly proved and allowed. The sole question is whether the tenant took an estate in fee simple or upon condition. The court ruled that he took an estate in fee simple, and the case is here on exceptions by the demandants to this ruling.

The clause under which the tenant claims title is as follows: 'Second. All the rest, residue, and remainder of my property, both real, personal and mixed, I give, devise, and bequeath to Francis J. Brennan, to him and his heirs forever. Provided he shall take care of me and look after me while I live.' The clause is well drawn, and aptly describes an estate upon condition. The word 'provided' imports a conditional rather than an absolute estate (Clapp v. Wilder, 176 Mass. 332), and the nature of the devise, and the circumstances under which it was made, manifest, we think, an intention on the part of the testatrix to make a conditional rather than an absolute gift. Her object was to make provision for her own care and comport during the remainder of her life. Except for this object, there was no apparent reason for making the tenant the recipient of her bounty, to the exclusion of his brothers and sisters. If is true that he had assisted her in making arrangements for admission to the hospital, and that he had taken a mortgage to enable her to raise funds for the contemplated expenses of her sickness at the hospital. But a niece had taken care of her from the beginning of her illness down to the time of her admission to the hospital, and would seem to have had as much claim upon her bounty as the tenant.

There is nothing to show that the testatrix and the tenant had been on terms of intimacy, or that she had at any time displayed any particular regard for him. If the circumstances would warrant an inference that she expected thenceforward that their relations would be more intimate than they had been there is, nevertheless, nothing to show that she trusted to this expectation, and the increased care for her comfort which might be expected to result from more intimate relations, as the sole ground of her bounty. The tenant relies upon Colwell v. Alger, 5 Gray, 67, Martin v. Martin, 131 Mass. 547, and Goff v. Britton, 182 Mass. 293, 65 N.E. 379. But those cases are not applicable. In neither one of them was there, as here, a condition in terms. In Colwell v. Alger, supra, it is expressly said of the clause relied on that, 'whatever else it might have meant, it was not a condition. It was not a condition in terms.' Neither were the circumstances such, in either one of those cases, as to show that a devise upon condition was intended, and that the language should be so construed. The condition would seem to be a condition precedent, rather than subsequent. It related to something to be done during the lifetime of the testatrix before the estate could vest. The fact that the tenant had no knowledge of the provisions of the will until after the death of...