Webster v. Ellsworth

18 N.E. 569, 147 Mass. 602, 1888 Mass. LEXIS 173

• Court: Massachusetts Supreme Judicial Court
• Decided: November 26, 1888
• Status: Published

Opinion

Holmes, J.

The limitation of one sixteenth of the residue to Mrs. Ellsworth, after payment of certain legacies, was a remainder, subject to the life estate of the testatrix’s husband, Philip 0. Rowe, who did not die until after Mrs. Ellsworth. For this reason, without going further, Mrs. Ellsworth’s husband took no estate by the curtesy. Shores v. Carley, 8 Allen, 425, 426. Even if he had a right which would have passed to assignees in insolvency, (Gardner v. Hooper, 3 Gray, 398, 405,) it could not be greater than the right of his wife to which it was incident, and therefore was subject to the contingency of her remainder vesting in possession, which it never did. Assuming, in favor of the appellant, without deciding, that the remainder to Mrs. Ellsworth was a vested remainder in fee, still it was subject to be divested, and was divested by her death before Philip C. Rowe, the life tenant, leaving no issue living at that time. Therefore Mrs. Ellsworth’s husband took nothing as her representative. Blanchard v. Blanchard, 1 Allen, 223, 230. Dodd v. Winship, 144 Mass. 461. Gray, Perpetuities, § 108. The principle of Kelley v. Meins, 135 Mass. 231, and of Welsh v. Woodbury, 144 Mass. 542, 545, has no application to a divesting clause of the kind before us, which is as familiar as any provision used by conveyancers.

Exceptions overruled.