Fiske v. Cobb

72 Mass. 144

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1856
• Status: Published

Opinion

Thomas, J.

The question upon the bill, answer and agreed statement of facts is, whether the plaintiff in equity, the administrator with the will annexed of the estate of Mrs. Cobb, shall pay over the money in his hands, the proceeds of personal property of the testatrix, to Nathaniel R. Cobb, or whether the same shall be held in trust, the income paid to. said Cobb during his life, and, at his decease, the principal to his children, if he shall have any, otherwise, to the Newton Theological Seminary, and the nephews and nieces named in the will.

The doctrine is well settled, that if a legacy is given generally but subject to a limitation over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of the year from the testator’s death. Security is required in such cases only when it is shown to the court that there is danger that the property will be wasted, secreted or removed by the first taker. Homer v. Shelton, 2 Met. 194. Fawkes v. Gray, 18 Ves. 131. 2 Williams on Executors, 1192.

Had such a question arisen upon the facts, it might have been necessary to consider further whether it was not the clear intention of the testatrix that the grandson, Nathaniel R. Cobb, should have an absolute property in the estate, and whether the limitation over is not void, as inconsistent with such absolute property. Ide v. Ide, 5 Mass. 500. Burbank v. Whiting, 24 Pick. 146. Homer v. Shelton, 2 Met. 194. Ramsdell v. Ramsdell, 21 Maine, 288. Jackson v. Bull, 10 Johns. 19. Jackson v. Robins, 13 Johns. 169. Gee v. Mayor of Manchester, 17 Ad. & El. N. R. 737. Hall v. Priest, ante, 22.

In the present posture of the cause, it is only necessary to say that the money in the hands of the administrator with the will annexed is to be paid to the defendant Cobb, without security.

Decree accordingly.