Lincoln v. Willard

• Decision Date: 24 February 1937
• Citation: 296 Mass. 549,6 N.E.2d 774
• Parties: W. IRVING LINCOLN v. ESTELLA WILLARD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

296 Mass. 549

6 N.E.2d 774

W. IRVING LINCOLN v. ESTELLA WILLARD.

Supreme Judicial Court of Massachusetts, Suffolk.

February 24, 1937

January 4, 1937.

Present: RUGG, C.

J., PIERCE DONAHUE, LUMMUS, & QUA, JJ.

Devise and Legacy What estate, Power. Power. Words, "Need."

A devise to the testator's sister of "all of my right and title in our home," which was owned by the testator and his sister as tenants in common, "for her own, with the right to sell or dispose of the same if she should need to during her life time," with a later provision that after

"the death of my sister . . . I desire that the home place be given to" another, "as she will direct in her will, and as I hereby direct," was construed, in the circumstances attending the making of the will, to create only a life estate in the sister with a power to sell in the contingency of her need, and a vested remainder in the other person named subject to being divested by a proper exercise of such power.

In the circumstances attending the devise of a life estate to an elderly sister of the testator "with the right to sell or dispose of the same if she should need to during her life time," the word "need" was construed to mean financial or physical necessity, and a conveyance by the sister in consideration of the grantee's furnishing her a home, companionship and care, but where no such need had arisen, was not a valid execution of power given her.

WRIT OF ENTRY in the Land Court, dated November 7, 1935. The action was heard by Davis, J., who ordered judgment for the demandant. The tenant alleged exceptions, which, after the death of Davis J., were allowed by Corbett, J.

R. L. Lurie, for the tenant. A. F. Richard, for the demandant.

PIERCE, J. This is a writ of entry to recover possession of a parcel of land on Gannett Street in Scituate, known as the Ellms "home place." At the time of the death of Benjamin T. Ellms who died in Scituate in 1922 at the age of ninety-one, he was the owner in fee simple of an undivided three-fifths interest in the Ellms "home place," and his sister, Harriet R. Ellms, owned the remaining two fifths. The issues in this case arise out of the construction of the will of Benjamin T. Ellms, and more particularly out of the construction of the following paragraphs: (1) "To my sister, Harriet R. Ellms, I leave and bequeath all of my right and title in our home on Gannett Street in both land and buildings for her own, with the right to sell or dispose of the same if she should need to during her life time, also my wood lot in Norwell with the same privilege." (2) "To my sister Harriet, I also give all money of which I am possessed, for her own use during her lifetime, to use as she may find necessary." (3) "After the death of my sister Harriet R. Ellms, I desire that the home place be given to W. Irving Lincoln as she will direct in her will, and as I hereby direct." (4) "To W. Irving Lincoln I leave the sum of one thousand dollars from my estate remaining in my sister's possession at time of her death." The will then provided for other pecuniary legacies, aggregating about $10,000, from funds remaining from his estate after Harriet's death, and Harriet by her final will provided fully for their payment,

The sole issue presented by the bill of exceptions is whether the judge was correct in granting the following rulings: "5. That under the terms of Benjamin T. Ellms' will, Harriet R. Ellms took a life estate in `the home place' on Gannett Street with a power to sell or dispose of it if she should need to during her lifetime and W. Irving Lincoln took a vested remainder in `the home place' subject to being divested by a proper exercise of Harriet's power"; and "6. That on the evidence in this case there was not a valid execution by Harriet R. Ellms of the power to sell or dispose of `the home place.'" The demandant was named as executor and served as such.

The decision of the Land Court contains a statement of the following facts: In 1878 Benjamin T. Ellms, Harriet R. Ellms and their two sisters bought from one Litchfield the lot of land on Gannett Street in Scituate on which their house was built. They also bought shortly afterwards another small lot on Gannett Street at the northwest corner of the Litchfield lot. When Benjamin died, title to three fifths of the above land was vested in him and two fifths was vested in his sister Harriet. After 1878 Benjamin individually bought adjoining lots, I referred to as the Studley, Lane and Town lots. In 1900 Benjamin conveyed to the demandant part of the Lane lot and from time to time thereafter Benjamin or Benjamin and Harriet conveyed portions of the Gannett Street land to the demandant or to his wife. The land on which the Ellms house stood with the remaining land surrounding it was known as the "home place." Benjamin T. Ellms had been a shipwright and a farmer. He carried on the "home place" as a farmer with the help of the demandant, who had lived on the opposite side of Gannett Street until 1903, when he built his home on the land he had purchased from the Ellmses. Benjamin's sister Harriet, who was nine years younger than he, lived with him on the "home place." They lived very frugally, had no servants and did the housework between them. The demandant and his wife were on very intimate terms with Benjamin and Harriet Ellms. The Ellmses and the Lincolns were neighbors and friends for years. They visited back and forth, and Mr. or Mrs.

Lincoln saw Benjamin and Harriet in the Ellms home practically every day for twenty years. The Ellmses were elderly people when the Lincolns built their house on Gannett Street. Theirs was a country neighborhood. When, as happened more frequently with their advancing years, accident or sickness befell the Ellmses, the Lincolns came to their assistance and, the Ellmses being without servants, Mrs. Lincoln nursed and cared for them. When Benjamin was ninety-one years of age, he was stricken with his last illness, which lasted about a month. Harriet was also sick in bed at the time. As usual Mrs Lincoln nursed both of them. She prepared their food at her own home and brought it over to them. During Benjamin's last illness he decided to make a will, and sent a message by Mrs. Lincoln to Harriet, who was then ill in another room, stating that he was going to make a will and that he would leave Harriet all his money to...