Cummings v. Shaw

108 Mass. 159

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1871
• Status: Published

Opinion

Chapman, C. J.

The ability of the plaintiff to perform his contract to convey the real estate described, by an absolute title, is derived from the residuary clause in the will of his wife, Mary H. Cummings. The clause is as follows : “ Fifth. All the rest, residue and remainder of my property of which I may die possessed, both real and personal, wearing apparel, silver ware, jewelry, watches, household furniture, horse, carriage, &c., I give and bequeath unto my beloved husband, Humphrey Cummings, for and during his natural life, with the right to dispose of the same as he shall think proper.”

“ The right to dispose of the same ” clearly refers to the property itself, and not merely to the estate in it. It includes the real as well as the personal property, and there is no devise over.

This clause gives to the plaintiff either an estate in fee, on the ground that power to convey an absolute estate is an attribute of ownership, and carries with it a fee, or it gives an estate for life, with a power to convey an absolute estate ; and upon either construction the plaintiff is able to convey to the defendant a fee simple, and thus perform his contract. If a question had arisen as to the validity of a devise over, it might be important to determine whether the plaintiff took an estate for life or in fee, but it cannot be so in this case. Jackson v. Robins, 16 Johns. 537, 588. Ramsdell v. Ramsdell, 21 Maine, 288, 295. Shaw v. Hussey, 41 Maine, 495. Hale v. Marsh, 100 Mass. 468.

Decree for the plaintiff, with costs.