Baker v. Thompson

162 Mass. 40 | Mass. | 1894

Morton, J.

It is true, as the demandants contend, that the words “all the residue and remainder of my property and estate, real and personal, of which I may die seised or possessed, or to which at the time of my decease I may be in any way entitled, I give, devise, or bequeath to my wife, Emily P. Eáyrs,” if they stood alone, would give the wife an absolute fee. But they are qualified, in the first place, by the words which directly follow them, “ for her support and for the support and education of our only child, Joseph Hearsey Eayrs, 2d.” In the next place, the will goes on to provide that what shall remain at the death of the wife shall go to the son Joseph, “ his heirs, executors, administrators, or assigns forever,” showing plainly that it was not the intention of the testator to give her a fee. And, lastly, in the concluding sentence of the residuary clause the testator gives his wife power “ to sell and dispose of any real or personal estate, . . . either at public or private sale, as she may deem best,” which would be unnecessary if he intended to give her a fee, and is inconsistent with an estate of fee simple. We think the ruling was right. See Chase v. Ladd, 153 Mass. 126; Kent v. Morrison, 153 Mass. 137, 139. Judgment on the finding.