Harlow v. Bailey

• Decision Date: 26 September 1905
• Citation: 189 Mass. 208,75 N.E. 259
• Parties: HARLOW et al. v. BAILEY et al. WOOD et al. v. HARLOW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

189 Mass. 208

75 N.E. 259

HARLOW et al. v. BAILEY et al.

WOOD et al. v. HARLOW et al.

Supreme Judicial Court of Massachusetts, Middlesex.

September 26, 1905

COUNSEL

Adams &amp Blinn, for Anna E. Harlow and others.

H. H Newton and Cornelius A. Parker, for Rebecca D. Wood and Kate B. Bragg.

Dudley P. Bailey, pro se.

OPINION

KNOWLTON C.J.

The first of these cases is a bill for instructions, on which the single justice reported to this court five questions in regard to the construction of the will of Sarah R Harlow, deceased. The second is a petition to quiet or establish the title to land, brought by some of the heirs at law of Sarah R. Harlow against the other heirs and the residuary legatees of said deceased. The question of law raised on the second petition is the same as the first question reported by the single justice on the first petition.

1. The second clause of the will vested in Abby R. Fletcher a life estate, with a power of sale in the real estate therein described, terminable on her marriage. In the first place, the words fixing the duration of the estate, 'so long as she shall remain unmarried.' do not indicate an intention to create an estate in fee. The authority to the devisee to sell at public or private sale, which immediately follows them, requires her 'to invest and reinvest safely the proceeds, and appropriate to her own use the income of such reinvestments so long as she shall remain unmarried.' This provision is inconsistent with the creation of an estate in fee, and shows that the estate was for life only. A power to sell may well be given to a devisee in connection with a devise of an estate for life. Woodbridge v. Jones, 183 Mass. 549, 67 N.E. 878; Collins v. Wickwire, 162 Mass. 143, 38 N.E. 365; Hatfield v. Sohier, 114 Mass. 48. The authority in the fourteenth clause to the trustees to sell this real estate on the request of Abby R. Fletcher, so far as it indicates any purpose in regard to the nature of her estate, implies very plainly that she was not to have the absolute control of an owner in fee. The provision in regard to her possible marriage has no tendency to enlarge the estate. Fuller v. Wilbur, 170 Mass. 506, 49 N.E. 916; Knight v. Mahoney, 152 Mass. 523, 25 N.E. 971, 9 L. R. A. 573. If we apply the rule of the early cases in regard to provisions in restraint of marriage, the object of the devise in this case plainly is to provide for the devisee while single, and not to restrain marriage. The provision is therefore valid, even though the devisee might be induced to remain single to enjoy the benefits of the property. The devisee was a sister of the testatrix, more than 70 years of age. Mann v. Jackson, 84 Me. 400, 24 A. 886, 16 L. R. A. 707, 30 Am. St. Rep. 358; Cornell v. Lovett's Ex'r, 35 Pa. 100; Jones v. Jones, 1 Q. B. D. 279; Heath v. Lewis, 3 De G. M. & G. 954; McKrow v. Painter, 89 N.C. 437; 2 Jarman on Wills (6th Ed.) § 886, and note, and cases cited.

2. The second clause of the codicil refers to the $2,000 of which the income is given to Abby R. Fletcher in the second clause of the will, and not to the $2,000 given to her absolutely. The words 'given for the benefit of my ...