320 Mass. 101 | Mass. | 1946
The petitioner, who is the widow of Elbridge R. Anderson and executrix of and residuary devisee and
Material facts are these: The real estate in question was purchased by Elizabeth, hereinafter described as the testatrix, on June 12, 1907, and was occupied by her and Mr. Anderson until her death on May 2, 1932. They had one child who predeceased them. Mr. Anderson survived the testatrix, and the respondents are her other heirs or their successors in interest. r The will of the testatrix provided as follows: “2. I give, devise and bequeath all of the income arising from my property, and all of my property, whether real, personal or mixed, unto my beloved husband, Elbridge R. Anderson, to have and to hold the same to his use for his comfortable' support and other use in any way that he may see fit to use or dispose of the same. If the income of my property is not sufficient for his use as he shall see fit to use said income, I direct that he shall have and use for his own comfortable support and for his own purposes, whatever they may be, so much of the principal of my said estate as he may desire. 3.-1 shall leave in a letter which I desire to be made a part of this will and to be incorporated herein, certain requests, which I desire to have him carry out. Said letter will be found with my private papers. 4. I hereby appoint my husband, Elbridge R. Anderson, as the sole executor and trustee, if needs be, under this will, and request that he be exempt from fur
On June 25, 1932, an inventory of the estate of the testatrix was filed in the Probate Court. The real estate in question was listed. Certain shares of stock afterwards traced to the estate of Mr. Anderson were appraised as of the gross value of $21,416.50. Jewelry, books, household goods and furnishings were also listed, and a portion thereof of the value of $2,000 was in the possession of Mr. Anderson at the time of his death. On June 8, 1933, he filed his account as executor of the will of the testatrix, showing personal property set out in the inventory and balance of income of $50,590.54 as turned over to him in “compliance with the terms of the will.” He assented to that account individually and no citation issued thereon. On February 19, 1934, the shares of stock above referred to with one exception were transferred by Mr. Anderson into his individual name, and stood in his name when he died. As to the personal property before referred to, the judge found complete ownership thereof passed to Mr. Anderson under the will of the testatrix but made no reference thereto in the decree entered by him. Mr. Anderson died on June 22, 1944. His will was allowed on July 17, 1944. The petitioner was appointed and qualified as executrix thereunder. As such executrix she made an agreement to sell the real estate in question for $10,000, the agreement providing that the sale was to be contingent upon her securing a license to sell the premises for that sum. Pursuant to this agreement the petitioner as executrix was authorized by the Probate Court to sell the premises for that sum by decree dated October 2,. 1944. This authority was decreed upon the sole assent of the petitioner. No citation was issued upon the petition. Counsel for the buyer, however, questioned whether under the will of the testatrix Mr. Anderson took a fee in the premises in question. In consequence the present proceeding was brought by the petitioner for construction of the will of the testatrix and determination of that question. There is nothing in the record to show from what source the assets of the estate of the téstatrix were derived.
In the present case, to conclude that only a life estate was given to Mr. Anderson by the will of the testatrix would mean that whatever of the property devised or bequeathed had not been used or disposed of by him but remained in his possession at his death would pass as intestate property. A construction of a will resulting in intestacy
Decree affirmed.