Collins v. Wickwire

• Decision Date: 17 October 1894
• Citation: 162 Mass. 143,38 N.E. 365
• Parties: COLLINS v. WICKWIRE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

162 Mass. 143

38 N.E. 365

COLLINS v. WICKWIRE.

Supreme Judicial Court of Massachusetts, Berkshire.

October 17, 1894

COUNSEL

A. Chalkley Collins and Frank H. Cande, for plaintiff.

E.M Wood and F.H. Wright, for defendant.

OPINION

KNOWLTON J.

The fundamental question in this case is whether the plaintiff's intestate, Caroline M. Kellogg, took an absolute estate in fee simple in the property given her in the first clause of the will of her husband, Norman Kellogg or whether she had only a life estate with a power of disposition. The language of the material part of the will is as follows: "First. I give and devise to my beloved wife, Caroline Mason, all my personal and real estate, to have and to hold for her use and her benefit during her natural life, with the right to dispose of the same by gift or will at her decease. Second. I direct that should she decease without will or testament or any actual conveyance to others of the right of said estate at her decease, that then the real estate or its value shall be divided as follows namely," etc. The defendant invokes the well-established principle that where a will gives an absolute ownership of property, with full power of disposition, a limitation over is void, because it is inconsistent with the absolute title given to the first devisee. Ide v. Ide, 5 Mass. 500; Burbank v. Whitney, 24 Pick. 146; Gifford v. Choate, 100 Mass. 343; Perry v. Cross, 132 Mass. 454; Kelley v. Meins, 135 Mass. 235; Ramsdell v. Ramsdell, 21 Me. 293; Jackson v. Bull, 10 Johns. 18, Trustees, etc., v. Kellogg, 16 N.Y. 83; Van Horne v. Campbell, 100 N.Y. 287, 3 N.E. 316, 771. On the other hand, in this state, and generally elsewhere, this principle is held not to be applicable where the will purports to give only a life estate to the first taker, with merely a power of disposition of the remainder as a separate interest. In such a case, if the power is executed, the property passes under the original will, through the execution of the power, to the person designated; and, if it is not executed, it remains to be affected by the other provisions of the will, or to pass as undevised estate of the testator. Welsh v. Woodbury, 144 Mass. 542, 11 N.E. 762; Chase v. Ladd, 153 Mass. 126, 26 N.E. 429; Kent v. Morrison, 153 Mass. 137, 26 N.E. 427; Kelley v. Meins, 135 Mass. 231; Joslin v. Rhoades, 150 Mass. 301, 23 N.E. 42; Kuhn v. Webster, 12 Gray, 3; Burleigh v. Clough, 52 N.H. 267; Ramsdell v. Ramsdell, 21 Me. 293. In a case of this kind it is often difficult to discover the intention of the testator, and the case now before us is by no means clear. The terms of the limitation of the wife's estate, "to have and to hold for her use and her benefit during her natural life," describe an estate which terminates at her death; and the words which follow, "with the right to dispose of the same by gift or will at her decease," are appropriate to create a mere power of appointment or designation, as distinguished from an ownership. There is nothing in any other part of the will which calls for a different construction of this language. The second clause refers to the "right of said estate at her decease" as an interest or estate by itself, and directs the disposition to be made of it in case the widow should decease without executing her power to dispose of it by will or by gift in her lifetime. Considering all the language together, we are of opinion that the superior court rightly ruled that the will gave her merely a life estate with a power of disposition.

The defendant presented at the trial, and afterwards filed, a writing entitled "Defendant's Objections to Auditor's Report," which begins as follows "The defendant objects to the allowance of...