Kimball v. Sullivan

113 Mass. 345

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Morton, J.

The devise in the fifth clause of the will of Reuben F. Foster, of all the residue of his estate to his wife Sarah, “to have and to hold the same forever,” is in apt words to give her a fee. It is not to be cut down to a lesser estate by the subsequent terms of the will, unless they show a clear intention of the testator to do so.

The proviso that if his wife “ at her decease should make no disposal of the property herein willed and bequeathed to her, and leave no child or children to heir the estate,” then the estate shall go to the three benevolent societies named, necessarily implies that she is to have the power of disposing of it by will. Bowen v. Dean, 110 Mass. 438. And we are of opinion that the reasonable inference from the proviso, construed in connection with the prior devise giving her a fee, is that the testator intended to give her a full power of disposal by will or deed, and, in case she should not have made any disposal of it at her decease, and should leave no children to inherit it, to devise it over to the three societies named. The language used is inartificial, but it is clear that the testator understood that he gave her an estate which her children would take by inheritance, if she did not dispose of it. It is not necessary to decide whether she took an absolute fee, the provisions subsequent to the gift in fee being repugnant and void, or a qualified fee, determinable if she died without children and without having disposed of the estate, with an executory devise over. In either case, as she had an absolute power of disposal, her deed conveyed a fee to the plaintiff. It follows that he can convey a good title to the defendant, and is entitled to a decree for a specific performance.

Decree for the plaintiff.