Todd v. Sawyer

Massachusetts Supreme Judicial Court

Todd v. Sawyer

17 N.E. 527, 147 Mass. 570, 1888 Mass. LEXIS 160

Massachusetts Supreme Judicial Court·Decided June 21, 1888·Published·Cited by 9 cases

Opinion

C. Allen, J.

At the outset, it is apparent that the plaintiff has at least a life estate. The words, “ to be kept and retained by her as long as she shall live,” were probably not intended to prohibit an alienation during her life, but were rather expressive of the testator’s expectation or wish. But if intended as a prohibition, no legal effect can be given to them, a provision against alienation being void. Blackstone Bank v. Davis, 21 Pick. 42. Gleason v. Fayerweather, 4 Gray, 348, 351. The words, “ be disposed of as to her seems proper at her decease,” [572] imply a power of disposition either by will or by deed. Kimball v. Sullivan, 113 Mass. 345. Tomlinson v. Dighton, 1 P. Wms. 149.

There was no devise over. Taking the plaintiff’s title, therefore, at the lowest, she has a life estate, with a full power of disposition by deed; and this enables her to convey a good title in fee. And indeed there seems to be no good reason for considering her own title as any less than a fee, especially in view of the provisions of the Gen. Sts. c. 92, § 5, that “ every devise of land . „ . shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.” Cummings v. Shaw, 108 Mass. 159. Lyon v. Marsh, 116 Mass. 232. Bowen v. Dean, 110 Mass. 438. Hale v. Marsh, 100 Mass. 468. Whitcomb v. Taylor, 122 Mass. 243, 248. Gibbins v. Shepard, 125 Mass. 541, 543. Kelley v. Meins, 135 Mass. 231.

According to the agreement,, judgment must be entered for the plaintiff for three hundred dollars.

Judgment for the plaintiff.

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C. Allen, J.

At the outset, it is apparent that the plaintiff has at least a life estate. The words, “ to be kept and retained by her as long as she shall live,” were probably not intended to prohibit an alienation during her life, but were rather expressive of the testator’s expectation or wish. But if intended as a prohibition, no legal effect can be given to them, a provision against alienation being void. Blackstone Bank v. Davis, 21 Pick. 42. Gleason v. Fayerweather, 4 Gray, 348, 351. The words, “ be disposed of as to her seems proper at her decease,” [572] imply a power of disposition either by will or by deed. Kimball v. Sullivan, 113 Mass. 345. Tomlinson v. Dighton, 1 P. Wms. 149.

There was no devise over. Taking the plaintiff’s title, therefore, at the lowest, she has a life estate, with a full power of disposition by deed; and this enables her to convey a good title in fee. And indeed there seems to be no good reason for considering her own title as any less than a fee, especially in view of the provisions of the Gen. Sts. c. 92, § 5, that “ every devise of land . „ . shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it clearly appears by the will that the devisor intended to convey a less estate.” Cummings v. Shaw, 108 Mass. 159. Lyon v. Marsh, 116 Mass. 232. Bowen v. Dean, 110 Mass. 438. Hale v. Marsh, 100 Mass. 468. Whitcomb v. Taylor, 122 Mass. 243, 248. Gibbins v. Shepard, 125 Mass. 541, 543. Kelley v. Meins, 135 Mass. 231.

According to the agreement,, judgment must be entered for the plaintiff for three hundred dollars.

Judgment for the plaintiff.

Todd v. Sawyer, 17 N.E. 527, 147 Mass. 570, 1888 Mass. LEXIS 160 (Mass. 1888).

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Opinion

C. Allen, J.

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