Damrell v. Hartt

137 Mass. 218, 1884 Mass. LEXIS 233

Opinion

Holmes, J.

The testator’s son John took a fee by the express terms of the eighth clause of the will, “to him, his heirs and assigns forever.” The power to dispose of the land by sale or will, which he is assumed to possess by the limitation over, “ if he shall die not having disposed of the same by sale or by will, and leaving no issue living at the time of his death,” is obviously assumed to be incident to the estate devised, and not a power superadded by those words to an estate for life insufficient of itself to carry such a power. We cannot cut down the intention clearly manifested in the limitation to the son, in order to sustain the limitation over. The intention is as definitely expressed in each and every part of the former as in any part of the latter. The subsequent and subordinate limitation must yield if it cannot stand with that which precedes it. The subsequent limitation in this case, being merely an attempt to take away one of the rights inseparable from the estate devised to the testator’s son John, cannot stand with that devise. It is therefore invalid, and the heir at law of the first devisee, John, takes by descent. Kelley v. Meins, 135 Mass. 231.

Decree reversed, and petition dismissed.