Ford v. Ticknor

47 N.E. 877, 169 Mass. 276, 1897 Mass. LEXIS 60

• Court: Massachusetts Supreme Judicial Court
• Decided: October 20, 1897
• Status: Published

Opinion

Barker, J.

1. The question raised at the trial in the Superior Court, as to the effect of the deed from Morton H. TiCbnor to Enos Ford, is not argued by the respondent. We treat it as waived, and assume that, as found by the Superior Court, from the time of the delivery of that deed to the time of the death of Enos Ford, he and his wife, Roselia M. Ford, were tenants in common of the land now sought to be partitioned, each owning one undivided half.

2. Roselia M. Ford had no power to dispose by will of the one undivided half of the land of which her husband died seised. Hi's family consisted of his wife and a son. The material part of his will is this: “ After payment of debts and expenses as aforesaid, I give, devise, and bequeath all the rest and residue of the estate, real and personal and6of .whatever name or kind, of which I shall die seised and possessed, to my wife Roselia M. Ford, to hold to her during her lifetime, with full power to use and dispose of the same as she shall deem right and proper. And after the decease of the said Roselia M., I give, devise, and bequeath all the remainder of my said estate to my son, Wellington M. Ford, to hold to him, his heirs and assigns forever.”

The respondent urges that the devise for life to the wife, “ with full power to use and dispose of the same as she shall deem right and proper,” gave her, if - not a fee, a power of disposal by will, and relies upon the case of Burbank v. Sweeney, 161 Mass. 490, in support of his contention. But in that case' the testator, having no children, gave out of the remainder after the life estate legacies to two of his heirs, and left the rest for his wife to dispose of as she might deem expedient, he himself disposing of it only “ in the event that she should make no disposition of it during her lifetime.” There the dominant purpose of the clause which was held to give the power of disposal by-will was to authorize the wife to dispose of the property, and the testator disposed of it only in the event that she did not. Here the dominant purpose is to give the wife a life estate, with a remainder given by the testator to his son, and the power of disposal is merely incidental to the life estate to make it fully effectual, and so that, if she deems best, her use of it during her life may exhaust the full value of the property. We regard the power in the present case as one only to be exercised during the active enjoyment of the life estate, and in aid of that enjoyment. The deed of August 16, 1890, was not an exercise of the power as it was never delivered.

3. Walter H. Ticknor, to whom Heman L. made a conveyance, was a mere agent of the latter, and not a Iona fide purchaser. He had notice of the true state of the title, and Heman L., and the person to whom he bargained the land knew all the facts. The ruling that Walter H. could rely upon the record title was rightly refused.

Judgment for partition affirmed.