| Mass. | Nov 15, 1873
The question submitted to us is whether the plaintiff is tenant by the curtesy in any of the estates held by the defendants as trustees under the will of his wife. As sha held the estates in part under the will of her mother, and in part
1. The will of Mrs. Coleman is inartificially drawn, but we think it is not difficult to ascertain from it the intention of the testatrix. She devises certain estates “ to Ann Louisa Hatfield, the wife of Charles Horatio Hatfield, of said Boston, to her sole and separate use, free from the interference and control of her said husband, or of any other person,” to have and to hold the same, “ to her the said Ann Louisa Hatfield, to her sole and separate use, as aforesaid, free from the interference and control of her said husband, or of any other person whatsoever, and to the children or child of the said Louisa, or the issue of any deceased child, in equal proportions.” This devise is not in the terms commonly used to create a fee. It is not to Mrs. Hatfield, her heirs and assigns, and contains no words extending her interest beyond her fife. There are no terms used indicating an intention to give her the power of disposal during her life. The devise “ to the children or child of the said Louisa or the issue of any deceased child in equal proportions,” is inconsistent with an intention to give Mrs. Hatfield a fee or an estate in tail. These are words of purchase, and are of no effect if she took an estate of inheritance with the power of disposal. We think the intention of the testatrix was to give Mrs. Hatfield an estate for life, and the remainder to her children, or the issue of any deceased child, in equal proportions.
The case of Gifford v. Choate, 100 Mass. 343" court="Mass." date_filed="1868-11-15" href="https://app.midpage.ai/document/gifford-v-choate-6415527?utm_source=webapp" opinion_id="6415527">100 Mass. 343, cited by the plaintiff, differs from this. There the devise was “ to her and her heirs and assigns forever,” and the other parts of the will, in the opinion of the court, showed a clear intention that the devisee should have the absolute and unlimited disposal of the estate during her lifetime. It was therefore held that she took a fee.
Construing this then as a devise of a life estate to Mrs. Hatfield, and a remainder to her children or the issue of deceased children, upon established rules of law the remainder vested in the children at the death of the testatrix. Pike v. Stephenson, 99 Mass. 188" court="Mass." date_filed="1868-03-15" href="https://app.midpage.ai/document/pike-v-stephenson-6415318?utm_source=webapp" opinion_id="6415318">99 Mass. 188. Blanchard v. Blanchard, 1 Allen, 223, and cases cited. And as the intention of the will is clear to give to all the
It follows, therefore, that Mrs. Hatfield had no estate of inheritance, and that the plaintiff has no tenancy by the curtesy in the estates devised by the will of Mrs. Coleman.
2. As to the estates devised to Mrs. Hatfield by the will of her brother, there is no difficulty. He devises certain estates to her “ to her sole and separate use for life, wholly free from the interference or control of her husband, or any future husband, and without the same being liable in any possible event for his debts or engagements.” This is an express devise of an estate for life, and is not to be enlarged to an estate of inheritance by the subsequent provisions, unless they clearly show the intention of the testator to do so. The power to dispose of the property by will or by deed during her life is not inconsistent with a life estate; and the gift over to “ her heirs at law in fee simple,” if she should not dispose of it, and the expression used in the power that she shall have “in her own right as devisee for life the right to sell,” clearly indicate that the intention was not to enlarge the estate previously given to an estate of inheritance. Ward v. Amory, 1 Curtis, 419. It is clear that Mrs. Hatfield took an estate for life with a power of disposition by deed or will, and if she had not exercised either power, a fee simple would have vested in her heirs at law under the will. Gen. Sts. c. 89, § 12. Moore v. Weaver, 16 Gray, 305. Her husband therefore has no title to those estates as tenant by the curtesy.
As this is an action of contract to recover rents received by the defendants, which can be maintained only upon the ground that the plaintiff is entitled to such rents or some part thereof as tenant by the curtesy, it follows that it must fail.
Judgment for the defendants.