Wolff v. O'Brien

• Decision Date: 02 January 1919
• Citation: 231 Mass. 487,121 N.E. 368
• Parties: WOLFF v. O'BRIEN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

231 Mass. 487

121 N.E. 368

WOLFF

v.O'BRIEN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 2, 1919.

Appeal from Superior Court, Suffolk County; Jabez Fox, Judge.

Suit by Solomon Wolff against Mary v. O'Brien and others. From decree for plaintiff, defendants appeal. Affirmed.

John J. O'Brien and Jos. M. Sullivan, both of Boston, for appellants.

Mark M. Horblit, Jacob Wasserman, and Horblit & Wasserman, all of Boston, for appellee.

CARROLL, J.

Daniel O'Brien died in September, 1898. He gave by will to his wife, Catherine, all of his property ‘for her natural life, with power to sell or mortgage said property if she considers it necessary.’ After her death it was devised to their children, who are the defendants in this suit.

Catherine leased the property to the plaintiff, the lease expiring in December, 1920. She died in 1917. The defendants have in writing notified the plaintiff to quit the premises; and he brings this bill praying for an injunction restraining the defendants from taking possession of the premises and interfering with his possession. In the superior court a decree was entered for the plaintiff.

In Kent v. Morrison, 153 Mass. 137, 26 N. E. 427,10 L. R. A. 756, 25 Am. St. Rep. 616, the will gave the testator's wife his entire estate with full power ‘to sell and convey the same by deed (part or all of it), and the proceeds thereof are to be used for her comfort, and otherwise, as she may think proper.’ It was held that the widow took an estate for life, with authority to sell and convey for any purpose and to use the proceeds as she might think proper; that the power to sell and convey includes the power to mortgage; that she could sell the whole or any part of the property; and that ‘such a power is as ample as that of an owner. * * * It is an absolute and unrestricted power to sell for the benefit, and in the discretion, of the devisee of the power.’ The case at bar is governed by Kent v. Morrison, supra. See Hedges v. Riker, 5 Johns. Ch. (N. Y.) 163.

The decree of the superior court is affirmed, with costs.

So ordered.