Gibbens v. Curtis

74 Mass. 392

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1857
• Status: Published

Opinion

By the Court.

It is quite clear, we think, that the real estate Which is the subject of the petition is not left undevised. It is given to the daughter of the testator in fee simple, subject to the trust in Miss Gibbens during the minority of the devisee or till her marriage with the consent of her guardian, and liable to be defeated by her death before her majority or marriage.

In the event of the death of the daughter before she becomes of age or is married, “the property bequeathed to her in the foregoing presents ” is to be divided in the mode and among the legatees named in the fifth clause of the will. The language is broad enough to include the real estate, and the use of the word “ bequeath ” in other clauses of the will clearly indicates that such was the intention of the testator.

The legacies to the first four persons named in the fifth clause are cash legacies. They are to be paid by the executors. For the discharge of this trust a sale of the real estate is necessary. The power to make the sale would seem to result from necessary implication. But whether this be so or not, this court, under the Eev. Sts. c. 71, § 20, may authorize or license such sale Decree for sale as prayed for.