221 Mass. 234 | Mass. | 1915
The plaintiff is entitled under the will of his wife to the income of the residue of her property during his life, with a power of spending and consuming the principal subject to the charge, amounting to $300 a year, in favor of the two aunts of the testatrix until the death of the survivor of them. Until the death of both aunts the plaintiff cannot exercise his power of spending and consuming the principal so that the remaining principal will not produce $300 a year. Subject to that he has the right during his lifetime to spend and consume the principal for any purpose which he in good faith may deem expedient.
It is pointed out by the plaintiff’s sons (two of the .three defendants) that (1) in Woodbridge v. Jones, 183 Mass. 549, and in Ford v. Ticknor, 169 Mass. 276, the testator used the words “ use and dispose;” that (2) in Cummings v. Shaw, 108 Mass. 159, Smith v. Snow, 123 Mass. 323, Taft v. Taft, 130 Mass. 461, Collins v. Wickwire, 162 Mass. 143, and in Knight v. Knight, 162 Mass. 460, the testator used the word “dispose,” and that (3) in Kuhn v. Webster, 12 Gray, 3, the words used were “sell, exchange, alter or otherwise dispose of.” There is nothing technical in the matter now before us. Any words are sufficient which show that it was the intention of the testator that the life tenant should have a power of spending and consuming the principal in addition to the income during his life. It is plain that in connection with the gift over of “so much as may remain of said residue” the provision here in question (“I empower him to use the principal of said estate for any purpose which he may deem expedient”) gave the life tenant the power stated above of spending and consuming the principal. The case is covered by Allen v. Hunt, 213 Mass. 276. See also in this connection Kent v. Mor
The plaintiff’s two sons have placed much reliance upon Glover v. Stillson, 56 Conn. 316, and on Security Co. v. Hardenburgh, 53 Conn. 169, on the ground that the testatrix was a resident of Connecticut when the will was executed although she was a resident of this Commonwealth when she died. We do not find it necessary to decide which State is to be looked to in such a case, because there is nothing in these two cases which is in conflict with our own decisions. This is so plainly evident that it is not necessary to go into them in detail.
There is nothing in the agreed facts which affects the construction which must be given to the will without reference to them.
The other questions argued are not on matters with respect to which the executor has to act at the present time, and therefore are not questions upon which the plaintiff is entitled to the instructions of the court. See for example Bullard v. Chandler, 149 Mass. 532; Peabody v. Tyszkiewicz, 191 Mass. 317; Bailey v. Smith, 214 Mass. 114.
There was no sufficient reason for the defendants insisting upon the opinion of the full court being taken. The guardian ad litem having been appointed by the court, his expenses must be paid. But no other costs or allowances out of the fund are to be made by the court. Nothing which we have said is to be taken to prevent the plaintiff paying his expenses of this litigation out of the principal of the fund.
Ordered accordingly.