Albee v. Holmes

114 Mass. 470

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Endicott, J.

The true construction of this deed is, that the land was conveyed to Prentiss to hold upon trust for the use of Sally G. Holmes, wife of Orpheus Holmes, and the children of Orpheus by her and by a former wife, and such other children as he might thereafter have by said Sally or any other wife. But this trust is subject to be determined by the power given to Orpheus and his wife Sally, or the survivor of them, to dispose of the interest vested in Prentiss the trustee, and to direct him to convey the estate to such person or persons as they or the survivor of them might in writing appoint to receive it. Such writing, when properly executed and delivered to the trustee, imposes upon him the obligation to convey the estate to the person appointed.

The person so appointed takes under the original deed in the same manner as if his name had been inserted in the power created by the deed, as the person to whom the trustee should convey when directed to do so in writing. Doolittle v. Lewis, 7 Johns. Ch. 45. Burleigh v. Clough, 52 N. H. 267.

The plaintiff being the successor of Prentiss, and subject to all the duties imposed by the deed on Prentiss, must convey to the appointee named by Orpheus; it appearing that Sally his wife is dead, and that the power has been well executed by him.

It is unnecessary to consider the numerous questions argued at the bar respecting the character of the trust, and whether after born children could come within its provisions, as the trust is deiermined by the execution of the power.

There must therefore be a decree accordingly; the terms thereof to be settled before a single judge.