Willcut v. Calnan

98 Mass. 75

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1867
• Status: Published

Opinion

Wells, J.

By Gen. Sts. c. 92, § 5, the devise of the house and land to Joseph Willcut, in the sixth clause of the will, must “ 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.” Nothing in the will indicates the existence of any reason for making a distinction between Joseph and the other children of the testator* nor is there any indication of a purpose so to do, unless it be in the fact that in the five clauses preceding and two clauses succeeding the sixth, words of inheritance are used, while they are omitted in the sixth clause. This marked difference in the phraseology is relied on as showing that the testator intended to give to Joseph a life interest only. But, if that were his purpose, it is difficult to understand why he did not express it explicitly by limiting the estate for the life of the devisee. If he supposed that the mere omission of words of inheritance would reduce the, estate to a life interest, it is equally difficult to understand why he omitted such words of inheritance in the ninth clause giving the residue of his estate to his wife, by which she now claims that the remainder in fee was devised to her.

Upon the whole, we are of opinion that it does not “ clearly appear from the will ” that the devisor intended to convey a life estate only to Joseph Willcut. This conclusion is strengthened by the improbability that the testator could have intended to limit the interest in the tomb, given by this same clause, to the period of the life of the devisee. The devise therefore must be held to have conveyed the fee, so that no interest passed to the demandant by the residuary clause; and the judgment of fhe superior court in favor of the tenant must be affirmed.