Tracy v. Kilborn

57 Mass. 557

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1849
• Status: Published

Opinion

By the court.

The single question is, whether the wife, as devisee, took an estate in.fee, without the word “heirs,” or other words of limitation. The words are, “I give and bequeath to my wife, Clarissa, all my estate, both real and personal, for her own use and benefit, reserving only sufficient to pay my just debts.” There are two recent cases, directly in point, which show that a devise of all one’s real and personal “ estate ” carries a fee, without words of limitation, by force of the word “estate.” Godfrey v. Humphrey, 18 Pick. 537; Kellogg v. Blair, 6 Met. 322. It is obvious, from the above cited clause in the will, in this case, if that circumstance were necessary, that this is a devise of a residue; reserving only enough to pay debts, the testator gives all the rest. The court are of opinion, that by this devise, the wife took an estate in fee, and that judgment must be rendered for the tenants.