Powers v. Rafferty

• Decision Date: 09 July 1903
• Citation: Powers v. Rafferty, 184 Mass. 85, 67 N. E. 1028 (Mass. 1903)
• Parties: POWERS et al. v. RAFFERTY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 85

67 N.E. 1028

POWERS et al. v. RAFFERTY et al.

Supreme Judicial Court of Massachusetts, Middlesex.

July 9, 1903

COUNSEL

John H. Ponce, for plaintiffs.

Harrison Dunham and M. F. Farrell, for respondents.

OPINION

HAMMOND J.

This is a petition for partition of the real estate specifically named in the second and third clauses of the will of Sarah Banfield, who, being seised of the same, died in 1893 leaving as her only heirs and next of kin four daughters Adelaide, Sarah, Delia, and Mary, and one son, Thomas.Adelaide died intestate in 1898, leaving a husband, Nicholas P. Powers, who is one of the petitioners, and as her only heirs and next of kin two children, Gertrude and John, minors, who, through a guardian, are the other petitioners.

The case calls for the construction of the third clause of the will, which reads as follows: 'I give, devise and bequeath to my said daughter Mary E. the other undivided half of my said real estate, to have and to hold to her and her heirs and assigns forever, but in trust nevertheless for the use and benefit of my daughter Adelaide G. Powers of said Cambridge; it being my desire that my said daughter Adelaide should have the full benefit of said undivided half, but to have no power to dispose of the same by deed or otherwise, and I request that no surety or sureties be required from my said daughter Mary E. in the execution of said trust.'

The petitions contend that under this clause the undivided half named therein was devised to Mary in trust for the benefit of Adelaide, and that upon the death of the latter it descended to her children in equal shares, subject to the estate by the curtesy in the husband, free and discharged of the trust.The respondent Mary, however, contends that this undivided half was devised to her in trust to hold for the benefit of Adelaide only during her life, and that upon her death the trust ceased, and the remainder fell into the estate of the testator, and became a part of the residue bequeathed in the eighth clause of the will to the said Mary and Adelaide in equal shares, so that the petitioners, who upon this view take only under this last clause, are seised of only one-half of this undivided half, or only one-quarter of the land, while Mary, receiving one-half under the second clause and one-quarter under the eighth clause, is seised in fee of three undivided fourths of the land.The other respondents, being the remaining children of the testatrix, contend that under the third clause Mary took an estate for the life of Adelaide, that the remainder was not disposed of by the will, and therefore vested in the children of the testatrix in equal shares.

The testatrix in the first clause appoints...