Elwell v. Pierson

1 Super. Ct. Jud. 42

• Court: Massachusetts Supreme Judicial Court
• Decided: February 15, 1763
• Status: Published

Opinion

The Court

chose to consult upon the Matter, and so Judgment was adjourned to August Term, where the Chief Justice delivered the Opinion of the Court, which he said was unanimous that Samuel by the Words would have taken a Tail; but that the Burden and Duty of Maintenance made it a Fee Simple. (⁹)

9 (9) It would seem, however, that the Court must have considered the intent of the testator to be doubtful, as otherwise it would be difficult to answer Mr. Gridley’s position that “never was any maintenance construed to make a see-simple when a clear tail was.” 2 Jarman on Wills, 172.