214 Mass. 582 | Mass. | 1913
This is a bill for instructions in regard to the construction of the first clause of the fifth codicil of the will of Mary J. Heywood. The clause is as follows: “First: I hereby revoke and cancel the third and fourth codicils to my said last will and testament, and all legacies given in said codicils to Harriet Cud-worth, who is sometimes called Harriet C. Cudworth, and in place thereof, I give, devise and bequeath the dwelling house and lot of land now owned and occupied by me being the estate numbered twenty-five (25) on Carmel street, in Chelsea, in the County of Suffolk to Delano W. Braman of Boston, Mass, as trustee, his successors, heirs, executors and administrators, in trust for the use and benefit of said Harriet Cudworth, in the manner herein provided, namely: first, to allow said Harriet Cud-worth to use and occupy free of rent, or to lease and rent said house and lot of land and to collect, take and receive the rents and income to her own sole use and benefit during her life or
Harriet Cudworth died before the testatrix, leaving no issue and as her only heir at law the respondent Abbie Washburn, a sister of the half blood. Her husband died before she did, and she did not marry again. Delano W. Braman named as trustee is still living, but never has been appointed trustee and never has petitioned to be appointed. The house and lot 25 Carmel Street has not been disposed of and the other assets of the estate of said Heywood were sufficient for the payment of all debts, charges and legacies. Harriet Cudworth left a will which has been duly proved and allowed, in which she bequeathed and de
The case comes here on reservation and report by a single justice,
The questions are first, whether the legacy lapsed by the death of Harriet Cudworth; secondly, if it did not, whether her will operated as an execution of the power to convey the property to Braman; and thirdly, whether if neither of these two alternatives, applies there was a gift over according to the true construction of the clause, to the heirs of Harriet Cudworth.
The single justice who heard the case ruled that the legacy lapsed and that the property fell into the rest and residue and passed under the residuary clause in the will.
We think that the ruling was right. It is plain, it seems to us, that the house and lot were intended for the benefit of Harriet Cudworth and for her alone, and that unless she survived the testatrix the legacy did not take effect. It is given to Braman, not for himself but “in trust for the use and benefit of said Harriet Cudworth in the manner herein provided.” Then follow provisions directing the trustee to allow her to occupy or to lease the premises and receive the rents and income thereof; to sell or mortgage or otherwise dispose of them as she may direct and to allow her to take the proceeds to her own use; to convey the same to her at the death of her husband; and if the house and lot are not conveyed to her during her lifetime then to convey the same to such person or persons as she may by will appoint, and in default thereof to her heirs. The clause concludes with the words: “It being my intention hereby to secure said house and lot of land to the sole use and benefit of said Harriet Cudworth, and free from the control or interference of her present or future husband.” Manifestly we think Harriet Cudworth was intended to be the sole beneficiary. The gift over to her heirs provides for the descent of the property as her property on the assumption that the entire beneficial interest had vested in her and that she had failed to dispose of the property as provided, and it was rendered necessary by the fact that the legal title was in a trustee.
It follows from what we have said that the house and lot pass under the residuary clause in accordance with the terms thereof to such of the legatees named therein as were living at the death of the testatrix.
Decree accordingly.
The case was submitted on briefs.
De Courcy, J.
