Wilmarth v. Bridges

113 Mass. 407

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1873
• Status: Published

Opinion

Gray, C. J.

By the will of Ezra Wilmarth, his widow took an estate for life in all his real property ; and the interest given to his daughter Mary therein, though subject to be terminated by her ceasing to occupy, was also a life estate. Plympton v. Boston Dispensary, 106 Mass. 544, 548. The remainder expectant upon these two life estates was, by the express terms of the will, to be divided among all the testator’s children, including his two sons and each of his daughters. This devise in remainder of the real estate is not limited, like the bequest of the personal property after the death of the widow, to the other children by name, excluding Mary, but includes her as well as them. The persons who were thus to take were ascertained at the death of the testator, and each of them took a vested remainder at that time, and might dispose of it by deed or devise. Pike v. Stephenson, 99 Mass. 188. Bowditch v. Andrew, 8 Allen, 339. It follows that Mary’s share in the remainder passed by her will to her husband, and the share of Ezra Wilmarth, Jr., by his will to Louisa C. Brocklebank. As said Ezra was never actually seised nor entitled to the immediate seisin of this share, his widow has no right of dower therein. Eldredge v. Forrestal, 7 Mass. 253. Blood v. Blood, 23 Pick. 80.

Exceptions overruled.