Rose v. Porter
| Decision Date | 02 March 1886 |
| Citation | 141 Mass. 309,5 N.E. 641 |
| Parties | ROSE v. PORTER. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Contract to recover $500 had and received by the defendant to the plaintiff's use; the same being deposited with the defendant as part payment for the purchase of real estate. The agreed statement of facts set forth that the plaintiff agreed to purchase of the defendant, who was a real-estate broker, the premises, No. 3 Boylston place, for $10,000 in cash, and the usual agreement in writing was signed by the plaintiff, in which the plaintiff agreed to take the estate and pay the cash therefor, within 10 days, which agreement contained the following clause: "Conveyance to be made by a good and sufficient deed, giving a clear title, free of all incumbrances, on or before," etc.; "title to be satisfactory, or the sale void." Upon examination of the title, it appeared that Selah B. Treat, late of Boston deceased, held the estate in fee-simple at the time of his decease in April, 1877. He left a will, which was duly probated May 21, 1877, which contained the following clause:
Subsequent to the death of Selah B. Treat, Alfred O. Treat died, leaving by will all his property to Charles R. Treat; and at the date of the agreement between the plaintiff and defendant his estate had been duly settled under his will. Under the agreement, the plaintiff offered the defendant a warranty deed, in the usual form, signed by said Charles R. Treat with release of dower by his wife. The defendant refused to accept such deed, or any deed that could be signed by said Charles R. Treat, solely and only on the ground that the above clause of the will of said Selah B. Treat created a trust in some form sufficient to be an incumbrance upon the estate, so that by said deed the plaintiff could not receive a clear title, and that the title was not satisfactory. The only ground upon which the title was not satisfactory is by reason of the clause above recited of the will of S.B. Treat.
Linus M. Child, for defendant.
L.M. Bateman, for plaintiff.
We think that, by the terms of the will, the oldest son was not to take an interest in the property, and that it was left to the discretion of the two younger sons to do for him and his family whatever, in their judgment, "fraternal regard" might require. The testator has not made it imperative that the two younger sons shall do anything for their older brother or his family, and has not defined what they shall do, if they choose to do anything, and there is clearly no trust for him or his family.
It is conceded that the wife of the testator deceased before the parties entered into the agreement, and it is unnecessary to determine whether, by the will, a trust was created for her during her life. Judgment affirmed.
NOTE.
In his will, M. stated that he had already given to those of his children who had reached majority such portion of his estate as he deemed just and proper, and, after bequeathing to each of them a small additional allowance, and directing the payment of his debts out of his estate, provided as follows: "All the residue of my real and personal property, after the payment of my debts, and the payment of the amounts herein bequeathed to my said heirs, I give and bequeath to my beloved wife, Nancy, for her sole use and benefit, and for the rearing, nurture, and education of my minor children, to-wit, D.R., A., and S.; and it is my wish, desire, and bequest that at her death all that remains of my said real and personal property, and its rents, issues, and increase, shall fall to and be owned by my said heirs, D.R., A., and S., to be divided between them, and, if possible, by them, share and share alike." Held, that under the terms of the will the widow took only a life-estate, and that what remained of the estate at her death became absolutely the property of the minor children. Williams v. McKinney, (Kan.) 9 Pac.Rep. 265.
In the case of Knox v. Knox, (Wis.) 18 N.W. 155, it was held that words of entreaty, recommendation, or wish, addressed by a testator to a devisee or legatee, even where occurring subsequent to an absolute disposition of the property, will make such devisee or legatee a trustee for the persons in whose favor such expressions are used, provided the testator has pointed out with clearness and certainty the objects of the trust, and the subject-matter to which it is to attach. The will construed in this case provided as follows: "I give, devise, and bequeath unto my wife, Mary Ann Knox, her heirs and assigns, forever, all my real and personal estate, money, tax certificates of sale, goods, chattels, and all my worldly substance, of every nature and kind whatever, of which I may die seized or possessed, having full confidence in my said wife, and hereby request that at her death she will divide equally, share and share alike, in equal portions, as tenants in common, between my sons and daughters, Thomas M. Knox, Jr., Richard C. Knox, Barclay Sidney Knox, John Knox, Mary Ann McMahon, now of Greensboro, North Carolina, and Kate L. Decker, the wife of Myron A. Decker, all the proceeds of my said property, real and personal, goods and chattels, hereby bequeathed.
But in Hopkins v. Glunt, (Pa.) 2 Atl.Rep. 183, it is said that precatory words or expressions of a desire or wish of a testator cannot, after an unqualified devise of property defeat the estate previously granted; and that where a testator bequeathed the whole of his estate to his wife, with the wish or request that she would divide what was left at her death among the persons named, nothing less than the wife's will, duly executed, could give effect to the request, and this was an act purely optional with her. The will in this case provided as follows: ...
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