Rolland v. Hamilton

• Decision Date: 25 May 1943
• Citation: 314 Mass. 56,49 N.E.2d 436
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CHARLES H. ROLLAND v. ROBERT B. HAMILTON & others.

314 Mass. 56

49 N.E.2d 436

CHARLES H. ROLLAND v. ROBERT B. HAMILTON & others.

Supreme Judicial Court of Massachusetts, Essex.

May 25, 1943

April 7, 1943.

Present: FIELD, C.

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

Devise and Legacy Life estate, Creation of trust. Trust, Express trust: what constitutes.

A devise of real estate "to my daughter . . . and at her death . . . the property shall be sold and the proceeds shall be equally divided between my two sons" gave the daughter a life estate only, with a remainder in fee to the sons.

No trust was created by a will containing various outright bequests and a devise of real estate to a life tenant with a direction that at his death the property should be sold and the proceeds divided among named persons, although at the end of the will was an appointment of a bank as

"trustee of my said estate."

PETITION, filed in the Probate Court for the county of Essex on June 29, 1942.

The case was heard by Costello, J. E. J. Garity, for the petitioner and another.

I. Bloch, for the respondent Hamilton and others, submitted a brief.

LUMMUS, J. This is a petition in the Probate Court for partition of land in Lynn among alleged tenants in common. A decree was entered ordering partition by sale and distribution between James B Rolland, Jr., (sometimes called

James B. Rolland,) and Charles H. Rolland, each owning one half. The heirs of Catherine Margaret Hamilton, who died on November 4, 1941 appealed.

The case depends upon the will of James B. H. Rolland, who died on November 2, 1926, owning the land. The material parts of his will were as follows: "First, I give and divise [sic] the house and land known as my home estate at #9 Raddin Street, Lynn, Massachusetts, to my daughter, Mrs. Catherine Margaret Hamilton, and at her death all the said Real Estate and all the property shall be sold and the proceeds shall be equally divided between my two sons, James B. Rolland and Charles H. Rolland. . . . Eight, I nominate [sic] and appoint my Son, James B. Rolland, executor of this my last Will, and I direct that no Surety be required for his official bond as executor. I appoint the Manufacturers National Bank, a banking institution in Lynn, County of Essex, Massachusetts, and its successors, trustee of my said Estate, and I direct that it be exempt from giving a Surety or Sureties on its bond." The other bequest, not recited above, were of stock, bonds, money in banks, and pecuniary legacies. None of them was in trust.

The words used in the devise to Catherine Margaret Hamilton, were capable, without any words of inheritance, of passing a fee simple. G. L. (Ter. Ed.) c. 191, Section 18. Bassett v. Nickerson, 184 Mass. 169 , 173-175. But the statute recognizes that a less estate may pass where "it clearly appears by the will, that he [the testator] intended to convey a less estate." In Bramley v. White, 281 Mass. 343 , 346, 347, it is said, "Although words of inheritance are not necessary to create an absolute estate by will . . . and it is not essential that the words `for life' or their precise equivalent be used in order to create a life estate . . . , in the absence of words of either sort descriptive of the quantity of an interest given, a testator's intent must be determined by construction." In the present case the testator provided in one sentence and one breath (Frost v. Hunter, 312 Mass. 16 , 21) that the house shall go to Catherine Margaret Hamilton and at her death to his sons. It seems clear that he intended to give her only a life estate, with remainder in fee to his sons.

Reported cases support this construction. In Ware v. Minot, 202 Mass. 512, the testatrix gave the residue of her estate, including the real estate in question "to my said son, Richard." The next paragraph began as follows: "If the said Richard shall not survive me, or if he shall die leaving no will duly executed by him, or if he shall die leaving no lineal descendants, then in that case it is my wish, and I so direct, that it, the property above mentioned, shall at my son's death pass in equal shares to my nieces, daughters of my late sister . . . ." It was held that by implication the lineal descendants of the son were to take, and that he was to have the power to dispose of the property by will; but that in default of a will and such descendants the nieces should take. The son had only a life estate, it was held.

In Schmaunz v Goss, 132 Mass. 141 , the testator gave a quarter of his estate, including the real estate in question, to four persons, one of whom was his sister Magdalena Schubert, in equal shares, and then provided as follows: "I hereby direct that the portion which my sister Magdalena Schubert receives from what I leave shall fall after her death to the children of her deceased son Erhard Schubert, and shall be left behind by my sister Magdalena to these said children of Erhard Schubert." Magdalena Schubert died, leaving a will in which she gave nothing to the children of her deceased son Erhard. It was held (pages 143, 144) that the language of the will was distinct and clear, "and plainly restricts her interest in the...