Keniston v. Mayhew

• Decision Date: 10 September 1897
• Citation: 47 N.E. 612,169 Mass. 166
• Parties: KENISTON v. MAYHEW et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

169 Mass. 166

47 N.E. 612

KENISTON v. MAYHEW et al.

Supreme Judicial Court of Massachusetts, Bristol.

September 10, 1897

COUNSEL C.G.M. Dunham, for Charles and William E Mayhew.

W.M Butler, for J.L. Mayhew and Sarah J. Eldridge.

B.T Hillman, for administrators and heirs of Henry Mayhew.

OPINION

FIELD C.J.

In our opinion, Mrs. Sprague took under the residuary clause of the will of Mrs. Ripley a life estate for her personal benefit in all the residue of the property, real or personal, of Mrs Ripley, with the power in Mrs. Sprague of disposing of it, or any part of it, at her discretion, during her life, but with no power of disposing of it by will; and on her decease all of the property not disposed of by Mrs. Sprague in her lifetime passed to the nearest of kin of Mrs. Ripley. Welsh v. Woodbury, 144 Mass. 542, 11 N.E. 762; Kent v. Morrison, 153 Mass. 137, 26 N.E. 427. The $3,000 received by Mrs. Sprague for the conveyance of the wharf property, so far as it can be identified, is subject to the provisions of the will, unless it was disposed of by Mrs. Sprague in her lifetime. The two sums of $1,000 each, deposited in her name in the New Bedford Institution for Savings,--one in trust for Charles Mayhew, and the other in trust for Nancy B. Mayhew,--cannot be considered as given to Charles Mayhew and Nancy B. Mayhew so as to have become their property, as the evidence is insufficient to establish a perfected gift. These deposits, with the accumulated dividends, as well as what remains of the $1,000 deposited by Mrs. Sprague in her own name, and not in trust, with the accumulated dividends, are a part of the estate of Mrs. Ripley. Sherman v. Bank, 138 Mass. 581. The words "nearest of kin" in the residuary clause mean nearest blood relations. Swasey v. Jaques, 144 Mass. 135, 10 N.E. 758. This construction is justified by the testatrix's use of the words "husband's nearest relatives" in the preceding clause. We think that these nearest of kin should be determined as of the death of the testatrix, and not as of the death of Mrs. Sprague. The power of disposition given to Mrs. Sprague did not enlarge her interest in the property given, beyond that of a life estate, and Mrs. Sprague is not the sole next of kin. Abbott v. Bradstreet, 3 Allen, 587; Minot v. Tappan, 122 Mass. 535; Fargo v. Miller, 150 Mass. 225, 22 N.E. 1003. The nearest of kin are therefore the three brothers of the testatrix, namely,...