Hale v. Marsh

100 Mass. 468

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1868
• Status: Published

Opinion

Foster, J.

The will of Enoch Hale, subject to a charge foi the payment of his debts, gives, devises and bequeaths to his wife Jane all his property and estate, both real and personal, “ freely to be possessed, used and enjoyed by her for and during the period of her natural life; with full and absolute power and authority to sell and dispose of the whole or any part or portion of the same, whether real or personal, at her own pleasure, and to manage, use and improve the same according to her discretion.” Then follows a provision that, in case the income and rents of said property and estate “ shall not be sufficient to provide for the complete maintenance of my said wife, and to enable her to make such further and other expenditures as she may deem it expedient or desirable to make, then and in such case J give to my said wife full and absolute power and authority to expend so much and such parts of the principal as she may elect, and for such uses and purposes as she may deem expedient or desirable.” Then the testator proceeds to give his wife a full power to dispose by will of the whole of his property and estate, or of so much thereof as may remain unex pended at her decease. Then a devise over is made to certain relatives of the testator, to take effect “ if my said wife shall happen to die before me, or if any of my said property and estate shall remain unexpended by her at the time of her decease, and not disposed of by any last will and testament to be made by her after my decease.”

The question is, whether this testator’s widow may convey in fee simple a portion of his real estate. The court entertain no doubt of her power to do so. The gift is of a life estate, with a full power of disposition, both by deed and will, over the entire property, at the pleasure of the devisee, without limitation or restriction as to the time, mode or purposes of the execution of the power. In such a case, the authorities seem to hold that the life estate and unlimited power of disposition over the remainder coalesce and form an estate in fee, and that the devise over of what may remain is void because inconsistent with the unlimited power of disposition given to the first taker. Ide v. Ide, 5 Mass. 500. Stevens v. Winship, 1 Pick. 318, and cases there cited. Larned v. Bridge, 17 Pick. 339. Harris v. Knapp, 21 Pick. 412. Gleason v. Fayerweather, 4 Gray, 348. Brant v. Gelston, 2 Johns. Cas. 384. Ramsdell v. Ramsdell, 21 Maine, 288.

For the purposes of the present suit, it is sufficient that the plaintiff in equity clearly has a power to convey the estate in fee simple, and that the defendant’s answer admits that the deed which she has executed- is in proper form for the purpose, if the power exists. The plaintiff is therefo-e entitled to a decree in her favor, with costs.