Welsh v. Woodbury

11 N.E. 762, 144 Mass. 542, 1887 Mass. LEXIS 227

• Court: Massachusetts Supreme Judicial Court
• Decided: May 20, 1887
• Status: Published

Opinion

Holmes, J.

The testator’s wife, Mary Jacks, took a life estate coupled with a power, and the limitation to his sister, Lydia Hobbs, was valid. Ayer v. Ayer, 128 Mass. 575, 577. Smith v. Snow, 123 Mass. 323. Kuhn v. Webster, 12 Gray, 3. The suggestion which has been made, that it is hard to distinguish between enjoyment for life with absolute power of disposition, and absolute ownership, Bradly v. Westcott, 13 Ves. 445, 451, is met by these cases, and by the testator’s clear expression of his intent to give an estate for life only. See also Kelley v. Meins, 135 Mass. 231, 234; Anon. 3 Leon. 71, pl. 108; 13 Ves. 453; Reith v. Seymour, 4 Russ. 263; Sugd. Powers, (7th ed.) 123-125. And the technical doctrine of Kelley v. Meins is avoided by this technical distinction. For the ground of Kelley v. Meins and that class of cases, whether concerning personal or real estate, is that the limitation over is an attempt- to take away one of the incidents of ownership, and to say that, if the owner does not dispose of his property in his life or at his death, it shall devolve otherwise than as the law has provided. This objection does not apply to a remainder after a life estate, even when the life estate is coupled with a power.

The objection to the uncertainty of what will be the subject of the limitation over, which was once thought to be a further ground for the doctrine of Kelley v. Meins, as applied to personal property, seems to be discredited by the later English decisions cited in that case, and never has been applied to a life estate coupled with a power. Cases supra. Surman v. Surman, 5 Madd. 123. In re Thomson's estate, 13 Ch. D. 144. Burleigh v. Clough, 52 N. H. 267. See Ross v. Ross, 1 Jac. & W. 154, 158; Cuthbert v. Purrier, Jac. 415, 417; Green v. Harvey, 1 Hare, 428, 432.

Whether the legacy to the testator’s sister was contingent, Johnson v. Battelle, 125 Mass. 453, Taft v. Taft, 130 Mass. 461, Kelley v. Meins, 135 Mass. 235, or vested, Burleigh v. Clough, ubi supra, it passed to her administrator upon her death before the wife. Winslow v. Goodwin, 7 Met. 363. Bunn v. Sargent, 101 Mass. 336. Putnam v. Story, 132 Mass. 205, 210.

Judgment for the plaintiff affirmed.