211 Mass. 497 | Mass. | 1912
By the second paragraph of the will of Jonas Smith two parcels of land were devised. The petition as finally amended concerns only the first parcel. It is contended by the respondents that the habendum clause of the paragraph does not affect this parcel, but only the second. This position is untenable. The description of each parcel is included between the granting or devising clause and the habendum clause, and it is manifest that the latter clause refers to all covered by the first. Such is the only reasonable interpretation.
Irrespective of the powers, the will creates as to this real estate a joint tenancy for life in the three children of the testator with a remainder in fee to such of their children as shall be living at the time of the death of his last surviving child. But both these estates, that for life as well as that in remainder, are subject to modification by the exercise of the powers conferred upon the life tenants. There are two powers given to each life tenant, — one to convey his interest to the other life tenants or either of them, and one to convey his interest to either one or more of the children of any of them. In case of a conveyance under the first power the estate granted is vested in the grantees or grantee for life and the remainder in fee in their children, share and share alike, or in default thereof to their heirs. This power never was exercised and, as only one of the life tenants is now living, never can be exercised. It is to be considered only so far as it throws light upon the meaning of the second power. In the case of a conveyance under the second power there was vested in the grantee a “full and perfect title in fee simple, notwithstanding the above devise to my children as joint tenants.”
It is evident from the will itself that the draughtsman was well
We are now brought to the consideration of the nature and effect of the second power. By the death of Francis and Webster, two of the life tenants, the whole life estate became vested in Caroline, the sole survivor. She proceeded to act under the second power and made a conveyance of her interest in the land to her daughter, who is the petitioner. The deed recites the power, and there is no doubt that the deed conveyed all that the grantor, either in her individual capacity or as donee of the power, could convey, and that the grantee received by virtue of the deed and of the power all that she could receive.
The power was given “to my said children or to either of them ... to convey his, her or their interest... to either one or more of
But it is argued by the respondents that, whatever might have been her powers at common law and whatever might have been the legal effect of a conveyance thereunder, this deed was in pursuance of the power and in exercise thereof, and that by the language of that power the interest which was to be affected and to which under the power the title in fee simple was to attach was not her interest in the life estate at the time of the conveyance, but her original interest, namely, one third.
But this interpretation does not commend itself to us. The most natural interpretation is to consider that the interest she had the power to convey was the interest which she had at the time of the conveyance.
By virtue of the deed the whole life estate passed to the grantee and by virtue of the power there was vested in the grantee a full and complete title to the land, the life estate in which was conveyed by the deed. The grantee became seised of the fee in the land. Upon this branch of the case we concur with the following language of the judge of the Land Court: “It seems to me that the intention of the testator as to the land in question was first, to keep it in the family, and second, subject only to that limitation, to leave it within the control of his three children. Each could dispose of his own life interest and each could dispose of
The ruling was right. The ruling as to the right of way was also right. In the deed from Jonas Smith to Francis Smith of the land adjoining the land in controversy it was mentioned as the “path leading to Lilly Ditch,” that is, as an existing way. The provision for a right of way over the path may take effect as an exception. Hamlin v. New York & New England Railroad, 160 Mass. 459. Bailey v. Agawam National Bank, 190 Mass. 20, and cases cited.
Exceptions overruled.