125 Mass. 541 | Mass. | 1878
The moneys in the hands of the administrator are the proceeds of real estate of his testator, sold for the payment
The case presents a single question of construction. In determining it, we must ascertain, if possible, the intention of the testator, and give effect to that intention, unless prevented by some established rule of law.
As to one third part of the residue of the estate after payment of the debts and expenses of administration, it is clear that the widow takes the fee. The language of the will is apt and full thus far.
As to the remaining two thirds, the language is peculiar. “ The other two thirds I leave in her power, and bequeath to her for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve.” It is contended on the part of the children of the testator, that, under this provision, the widow takes a life estate only, with a power of appointment by will among the children, at her discretion. We are of opinion, however, that this is not the true construction. The words “ I leave in her power,” coupled with the other language of the devise, are equivalent to the words, “ with power to dispose of the same as she shall think proper.” This being so, the widow took at least an estate for life, with a power to convey the fee and to receive the proceeds. Cummings v. Shaw, 108 Mass. 159. The real estate having been sold by the administrator for payment of debts, the balance of the proceeds in his hands, after such payment, must go to the person whom the will authorizes to convey the estate. If the subsequent words, enjoining the widow to divide the estate on her death on the children,.make a good devise over, such devise would take effect in case of a failure by
Decree accordingly.