Dana v. Dana

• Decision Date: 27 February 1904
• Citation: 70 N.E. 49,185 Mass. 156
• Parties: DANA v. DANA et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 156

70 N.E. 49

DANA v. DANA et al.

Supreme Judicial Court of Massachusetts, Middlesex.

February 27, 1904

COUNSEL

J. Ralph Wellman, for plaintiff.

Hollis R. Bailey, for defendants Lucia W. Longfellow and others.

Edmund M. Parker, for defendants Richard H. Dana and others.

OPINION

BRALEY J.

From the pleadings in this case, the question presented by the parties for our decision is whether, under the second clause of the will of James Greenleaf, his wife, Mary Longfellow Greenleaf, took only a life interest in the residue of his estate, with a limited power of disposal of the principal, or a life interest therein, with full power, not only to use the income, but also to expend the principal, either in whole or in part, as she might deem advisable for her own personal welfare and enjoyment. And the answer is to be sought for and found in the intention of the testator, which is to be ascertained from the provisions of the whole instrument.

At the date of the execution of the will it had been settled that a testator might make a testamentary disposition of his property in which he could devise and give a life estate with power to sell in the first taker, and a remainder over in any residue that might be left on the death of the life tenant. Harris v. Knapp, 21 Pick. 412; Lynde v Estabrook, 7 Allen, 68. This will may well rest upon the law of these decisions. His principal purpose was to make, in the first place, ample provision for his wife, of whom he speaks in language of affection, and then, in clear and sweeping words, declares that after the payment of his debts she is to take all the residue of his estate, not only to have and to hold, but to enjoy, during her life. She also, at her pleasure, might change the body of the estate, so devised to her, into any form of investment that she deemed beneficial, and 'sell and dispose of any, or all of it at her pleasure and discretion,' as she thought necessary 'for her own comfort and happiness, without accountability to any person whatsoever.' If the testator had stopped here, the language used would have been sufficient to pass a fee. Gen. St. 1860, c. 92, § 5; Chase v. Chase, 132 Mass. 473. But he went further, and in the last clause of his will he speaks of the estate created in his wife by the second clause as 'my beloved wife's life interest therein as stated above,' and then declares that the 'reversion and residue of my said estate, if any,' at her decease, is devised and bequeathed absolutely, and in fee simple, to certain of his relatives, who are specifically named. It would be difficult to employ language to more clearly and concisely express the purpose and intention of the testator than the words used by him. He gave to his wife, during her lifetime, as absolute and ample a power to dispose of the estate devised as would be possessed by an owner in fee. And it has been decided that such a power may be an incident of a life estate, and legally given to a life tenant. Johnson v. Battelle, 125 Mass. 453; Welsh v. Woodbury, 144 Mass. 542-545, 11 N.E. 762; Sawin v. Cormier, 179 Mass. 420, 60 N.E. 936.

If it be assumed, from the uncertain and indefinite allegations in the bill, that of the residue and principal of the estate devised to her, a small part of which it is conceded she has spent in her lifetime, an insignificant portion, when compared with the whole, was used by her for charitable purposes, the claim of the petitioner, as trustee under his will, that the executors of her will must make good...