Welsh v. Woodbury
| Decision Date | 20 May 1887 |
| Citation | 144 Mass. 542,11 N.E. 762 |
| Parties | WELSH, Adm'r v. WOODBURY, Adm'r. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
COUNSEL E.T. Burley, for defendant.
By the case stated, the parties seek to present two questions First. What is the nature of the estate, in the personal property, given to Mary Jacks by her husband's will? If she took an absolute estate therein, the gift over is void and therefore this action cannot be maintained. Bacon v Woodward, 12 Gray, 376; Burbank v. Whitney, 24 Pick. 146; Hale v. Marsh, 100 Mass. 468; Gifford v. Choate, Id. 346; Whitcomb v. Taylor, 122 Mass. 243; Dunn v. Sargent, 101 Mass. 336; Kuhn v. Webster, 12 Gray, 3; Ayer v. Ayer, 128 Mass. 575; Kelley v. Meins, 135 Mass. 231, and cases cited. If the gift over to Lydia Hobbs can be supported, then the question arises, which is of considerable importance to the parties, did the interest of Lydia Hobbs vest in her administrator, or did it, upon her death or thereafter, pass directly to the heirs under the will? If the latter, then this action cannot be maintained. See Winslow v. Goodwin, 7 Metc. 363; Clapp v. Stoughton, 10 Pick. 468, 469; Putnam v. Story, 132 Mass. 210; Johnson v. Battelle, 125 Mass. 453; Taft v. Taft, 130 Mass. 461.
W.L. Thompson and H.C. Holt, for plaintiff.
The first question to be settled in this case is, what estate did Mrs. Jacks take by her husband's will? Did she take an absolute estate in the real and personal property of her husband, or a life-estate only, therein, with the power of disposal during her life-time, with a gift over to the plaintiff's intestate and others of what remained undisposed of at her death? If the former, then it is conceded that the gift over is void. If the latter, the plaintiff contends that he is entitled to recover. The latter is the true construction of the will. The intention of the testator from the language used is manifest. "When a life-estate only is given to one person, with a power to dispose of the land, in which the life-estate only is given, and, on the death of the first taker, the portion of the land remaining undisposed of is given to another, the gift over is valid, and takes effect as to all the land remaining undisposed of on the death of the life-tenant as a remainder." Kelley v. Meins, 135 Mass. 231; Smith v. Snow, 123 Mass. 323; Gibbins v. Shepard, 125 Mass. 541. The language above quoted exactly describes what was intended by the testator in this will in reference to the real estate, and the gift over of the real estate is valid. There is no established rule of law to prevent the manifest intent of the testator in this case being carried out as to the personal property as well as the real. Smith v. Bell, 6 Pet. 68; Homer v. Shelton, 2 Metc. 194; Surman v. Surman, 5 Madd. 123; 2 Redf. Wills, (3d Ed.) pp. 393, 394, §§ 20, 21, 22, and cases cited; Ayer v. Ayer, 128 Mass. 575; Kuhn v. Webster, 12 Gray, 3. The administrator of Lydia Hobbs, deceased, is the proper person to sue to recover the legacy to her, under the will, and he can maintain this action; for the interest of Lydia Hobbs under the will, if any, in the personal property, was either a vested interest simply, or a vested interest in a contingent remainder. If the former, the legacy is, beyond question, payable to the administrator; if the latter, it is transmissible like a vested interest, and also payable to the administrator. Winslow v. Goodwin, 7 Metc. 363; Dunn v. Sargent, 101 Mass. 336.
Supplement to Plaintiff's Brief.
The final vesting of personal property may be postponed to the same extent as in an executory devise of real estate. 4 Kent, Comm. 269, 271; Fosdick v. Fosdick, 6 Allen, 41; Sears v. Russell, 8 Gray, 86-100. A full power to sell or devise the premises may be given to the life-tenant without affecting the validity of the limitation over, in case the power is not exercised. Hatfield v. Sohier, 114 Mass. 48-53; Moore v. Weaver, 16 Gray, 305; Stockbridge v. Stockbridge, 99 Mass. 244; Johnson v. Battelle, 125 Mass. 453; Gibbins v. Shepard, Id. 541; Hoyt v. Jaques, 129 Mass. 286; Taft v. Taft, 130 Mass. 461. And where the power is, by the terms of the will, to be exercised only in a certain contingency, and the contingency never happens, the validity of the remainder over is not affected. Stevens v. Winship, 1 Pick. 318; Minot v. Prescott, 14 Mass. 496; Paine v. Barnes, 100 Mass. 470.
OPINION
The testator's wife, Mary Jacks, took a life-estate coupled with a power, and the limitation to his sister Mary Hobbs was valid. Ayer v. Ayer, 128 Mass. 575, 577; Smith v. Snow, 123 Mass. 323; Kuhn v. Webster, 12 Gray, 3. The suggestion which has been made, that it is hard to distinguish between enjoyment for life, with absolute power of disposition, and absolute ownership, (Bradly v. Westcott, 13 Ves. 445, 451,) is met by these cases, and by the testator's clear expression of his intent to give an estate for life only. See, also, Kelley v. Meins, 135 Mass. 231, 234; Anon., 3 Leon. 71, case 108, 13 Ves. 453; Reith v. Seymour, 4 Russ. 263; Sugd. Powers, (7th Ed.) 123, 125. And the technical doctrine of Kelley v. Meins, is avoided by this technical distinction. For the ground of Kelley v. Meins, and that class of cases, whether concerning personal or real estate, is that the limitation over is an attempt to take away one of the incidents of ownership, and to say that, if the owner does not dispose of his property in his life or at his death, it shall devolve otherwise than as the law has provided. This objection does not apply to a remainder after a life-estate, even when the life-estate is coupled with a power.
The objection to the uncertainty of what will be the subject of the limitation over, which was once thought to be a further ground for the doctrine of Kelley v. Meins, as applied to personal property, seems to be discredited by the later English decisions cited in that case, and never has been applied to a life-estate coupled with a power. Cases supra; Surman v. Surman, 5 Madd. 123; In re Thomson's Estate, 13 Ch.Div. 144; Burleigh v Clough, 52 N.H. 267. See Ross v. Ross, 1 Jac. & W. 154, 158; Cuthbert v....
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