Morse v. Inhabitants of Natick

• Decision Date: 05 September 1900
• Citation: Morse v. Inhabitants of Natick, 176 Mass. 510, 57 N. E. 996 (Mass. 1900)
• Parties: MORSE et al. v. INHABITANTS OF NATICK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

176 Mass. 510

57 N.E. 996

MORSE et al. v. INHABITANTS OF NATICK.

Supreme Judicial Court of Massachusetts, Middlesex.

September 5, 1900

COUNSEL

P. H. Cooney, for tenant.

L. H Wakefield and Henry Hogan, for defendant.

OPINION

MORTON J.

It is clear, we think, that Mrs. Rockwood took under her brother's will only a life estate in the rest and residue, with power 'to sell and dispose of so much * * * as will insure her a comfortable living.'Smith v Snow,123 Mass. 323;Kelley v. Meins,135 Mass 231;Welsh v. Woodbury,144 Mass. 542, 11 N.E. 762.There is nothing which gives her a power to dispose of it by will, and the testator's purpose which is expressed 'to give her full control, * * * with full power to deed to her grantees, their heirs and assigns, forever,' does not convert the interest given her from a life estate into a fee.It was inserted, we think, only to make more clear her right to sell and convey in case it became necessary to do so in order to insure her a comfortable living.So far therefore, as the claim of the demandants rests on the alleged right of Mrs. Rockwood to dispose of the rest and residue, or any part of it, by will, it must fail.But as heir at law of her brothershe would be entitled to an undivided third of the farm, if the attempted disposition of his estate after her death should prove, for any reason, to be invalid; and this interest would pass by her will to the demandants.It becomes necessary, therefore, it consider the effect of the disposition which he has attempted to make in that event, which is as follows: 'At her [his sister's] decease I give and devise the balance of my estate, of whatever name or nature, to the town of Natick, but in trust, nevertheless, the income of which is to be used for the preservation of the monument which my executor is hereby authorized to erect at my grave, and for the care and beautifying of my lot in the cemetery.* * * The town shall not expend a greater sum than four per cent. per annum, deeming that as large an amount as the town ought to pay.'It is settled in this commonwealth that a bequest to provide for the permanent care and beautifying of a burial place and monument is not a public charity, and is void at common law, as creating a perpetuity.Bates v. Bates,134 Mass. 110.See, also, Sherman v. Baker,20 R.I. 446, 40 A. 11.But it is also settled in this state that a trust to keep a burial lot and monument always in good order is, under our statutes, a good perpetual trust.In re Bartlett,163 Mass. 509, 513, 40 N.E. 899;Green v. Hogan,153 Mass. 462, 27 N.E. 413.The observation in Leonard v. Haworth,171 Mass. 496, 499, 51 N.E. 7, has no reference to statutory trusts for the purposes there referred to.The fact that the town had ceased to own the cemetery at Mrs. Rockwood's death, or that the testator did not himself own the lot when he was buried, and never owned a lot in the cemetery, is not, we think, material.The effect of the statute is to authorize a city or town to hold money in trust whether the...