161 Mass. 490 | Mass. | 1894
The testator first gave all his estate to his wife for life, and then proceeded to deal with the remainder after her death by giving to a nephew one piece of land and two thousand dollars, to another nephew another piece of land, and to an academy three thousand dollars, the income of which is “ to be appropriated to aid some religious young man or men of promise in their preparation for college.” The will concluded with this provision: “ Item 4th. The remainder of my estate I leave for my wife to dispose of as she may deem expedient, but in the event that she should make no disposition of the same during her lifetime, I give the remainder of my estate not disposed of as above to my heirs at law.”
The demandants are his nephews and nieces and his heirs at law. The demanded premises were his home until his death, in the year 1873, and the home of his widow until her death, on October 26, 1891. She made no sale or conveyance, but by a will executed on June 27, 1890, devised the premises to the tenant. The testator was not a lawyer, and his will was drawn by himself.
The tenant contends that the will gave to the widow a power of disposal by will, while the demandants contend that the clause “but in the event that she should make no disposition of the same during her lifetime, I give the remainder of my estate not disposed of as above to my heirs at law,” limits her power to conveyances to take effect during her life, so that she had no power of disposal by will, and that they are entitled to recover as devisees.
While the fact that the testator was not a lawyer is of some significance, the will does not indicate ignorance; while it shows some want of accuracy in the use of technical language, the testator would seem to have been able to express his intentions with considerable clearness and force. As might be expected from his situation, possessing an ample property, and having a wife and no children, and no relatives nearer in degree than nephews and nieces, his dominant purpose is to make his wife his chief beneficiary. That he had affection for her and confidence in her judgment is shown by the language, in which
The precise question is whether he intended that his widow should have power to dispose by will of the property which he left for her to dispose of as she might deem expedient. Reading the clause in which the testator, after having made in the two •previous items of his will three gifts to take effect after the decease of his wife, provides for the ultimate disposal of the rest of his property, and, in so doing, at the outset leaves the bulk of his estate for her “ to dispose of as she may deem expedient,” a ■majority of the court think that the testator meant to empower his wife to make a disposition of that part of his estate by will. In the first place, he contemplated that she would hold and enjoy all his property during her life. The appraised value of his whole estate was $25,000, and of this the demanded premises, on which was his dwelling-house, were appraised at $3,000. Besides the homestead he had no real estate, except the two parcels which after his wife’s decease were given specifically to two nephews, and which were appraised at $1,000. All of his land except the homestead having been previously given after his wife’s death to nephews in such a way that the power of disposal which he was drafting could not affect it, that power was to affect, aside from personalty, only the homestead where he
It remains to inquire whether the words “ make no disposition of the same during her lifetime ” have acquired a settled meaning contrary to that in which we think they were used by the testator. No case has been called to our attention in which it has been held that a devise over in case the life tenant, with express power of disposition, made no disposition of the estate during her lifetime, carried the remainder if the life tenant disposed of the property by will. In Perry v. Cross, 132 Mass. 454, after a devise to his wife in fee the testator added, “ It is also my will that if any of the above named property should remain undisposed of by my wife at her decease, the same shall descend and belong to my heirs at law ”; and it is said in the decision that “ it is clearly to be implied from the language used that she could not devise by will that which was undisposed of at her decease.” This could not have been intended to mean that holding land in fee she could not devise it. While it no
In Kelley v. Meins, 135 Mass. 231, where a testatrix devised all her property in fee to her son, and afterwards by a codicil provided that, if he should die without leaving issue, any portion of her estate which should remain should be equally divided among her sisters and nieces and their female heirs and assigns, it is held that the true construction of the codicil and the will taken together is, that the son shall have “ during his life the absolute power of disposing of all the property given,” and, in a later portion of the decision, that it was the intention of the testatrix that, if the son died “ leaving issue living at his death, he might dispose of what remained by will, or that, leaving no will, it should descend to his heirs.” This language implies that one who, without holding an absolute fee simple has an absolute power of disposing of property during his life, may dispose by will of what remains at his death. Certainly there is nothing in these cases which should make us hesitate to hold that the testator intended to give his wife the power of disposing by will of the property which he left for her to dispose of as she might deem expedient.
In the opinion of a majority of the court, the entry must be,
Judgment for demandants reversed, and judgment to be entered for the tenant.