137 Mass. 475 | Mass. | 1884
There is nothing in the will or codicils to control the express devise of the legal estate to the executors,
By the residuary clause of his will the testator directs that the remainder of his estate, including certain lands in East Boston, and what he terms his Williams farm property, shall be divided, or considered as divided, into ten equal portions or shares. He then devises to his son three and a half shares, to his daughter and her children three and a half shares, and the remaining three shares to the children of a deceased daughter. The clause then proceeds as follows: “ After great deliberation and reflection I have devised to my children and grandchildren, as tenants in common, undivided shares in my East Boston and Williams farm properties, believing that it will he best for the interest of all of them to keep the property in mass, undivided, so that the properties can be managed by one head, one agent for each property, to make sales for the common benefit of all, and at the expense of one agent for each property, instead of partitioning the property among them by devising to them several lots, whereby they would be placed in positions antagonistic to each other, producing rivalry in sale, and depreciating the value of the properties by entering into competition with each other. But in order that this desire of mine (which I hope may be observed but do not make obligatory) may not work injuriously on my two children who are of full age, by clogging sales on account of the infancy of any of my grandchildren, and rendering the interference of some court to make sale of the infants’ shares necessary, I therefore give and devise to my executors, and to the survivors and survivor of them, full power and authority to sell at private sale, in fee simple absolute,” the shares and interests of the grandchildren under age, the adult devisees joining in selling their interests.
The language of the third codicil, made nearly four years after the will, is: “ Whereas it is necessary, in order-to make rapid sales of my lands in the State of Massachusetts, that as few persons as possible should be required to make sales, and that I should enlarge the power to make sales given to my executors in my said will, and in order to avoid the expense and labor of a partition among my devisees, I hereby give to my executors named in my said will, or as many as may qualify under it, and
The intention to make absolute in the codicil what was expressed as a wish in the will is manifest. The estate is given to the executors in trust, not only to sell, and invest and pay over proceeds of sales, but to receive and expend rents and profits, to manage and improve the lands, and dedicate streets to the public.
All the parties in interest now desire a partition of the land, and many considerations have been urged, with much force, to show that, in the condition of things as they exist ten years after the death, of the testator, his intentions would be promoted by devesting the trustees of the legal estate. But neither the wishes of the devisees, nor the lapse of time, nor changes in the situation of the property, can affect the construction of the will, or change the intention of the testator manifested in it, or the estates given by it. It is the intention that he had, not that he might now have, which must be carried out, and the titles given by the will when it took effect which must be protected. Petition dismissed.