Kelley v. Meins

135 Mass. 231 | Mass. | 1883

Field, J.

Anna A. Meins by her will gave all her estate, real and personal, to Benjamin R. Meins, Jr. The intention of the testatrix, as expressed in the first codicil, is, that if Benjamin R. Meins, Jr. shall die without leaving issue living at his death, “ then any portion of my said estate and property which may remain shall be equally divided among my sisters and nieces and their female heirs and assigns.” By the portion that may remain is meant the portion that may remain at the death of Benjamin R. Meins, Jr.; and the construction to be given to this codicil and the will taken together is, that Benjamin R. Meins, Jr. shall have during his life the absolute power of disposing of all the property given. Ide v. Ide, 5 Mass. 500. Harris v. Knapp, 21 Pick. 412.

The effect of the second codicil is that Benjamin R. Meins, Jr. shall not come into possession of the property given him until he shall attain the age of twenty-five years, and meanwhile the executors shall hold the property in trust to apply the income to his support.

As the lands demanded were purchased with the personal property of the testatrix after her death, the principal question is whether the bequest to her sisters and nieces contained in the first codicil is not void, on the ground that it is repugnant to the rights of property, and of control over it, which were given to Benjamin R. Meins, Jr.

It may be said that, as the personal property with which the lands were purchased never came into the possession of Meins, and was never mingled with his other property, the lands are as certainly identified as derived from the estate of the testatrix as if they had formed a part of the devise of her real property. The rights of the demandants cannot be greater than if the lands were a part of those devised; and, without considering the distinctions which may exist between executory bequests and executory devises, we shall consider the case as if the testatrix had been seised of the lands demanded at the time of her death. See Hooper v. Bradbury, 133 Mass. 303.

That grantees of Meins would have taken a good title as against these demandants is clear. Ide v. Ide, ubi supra. Gifford v. Choate, 100 Mass. 343. Hale v. Marsh, 100 Mass. 468. Lyon v. Marsh, 116 Mass. 232.

It is argued that the devise of the portion of real property, which may remain on the death of Meins without leaving living issue, to the sisters and nieces of the testatrix, cannot take effect as a remainder because of the fee first given to Meins; and that it cannot take effect as an executory devise because of the right and power given to Meins to defeat the devise by disposing of the whole property during his life.

Where land is given by will absolutely to one person, with a gift over to another of such portion of it as may remain undisposed of by the first taker at his death, the gift over is void, as repugnant to the absolute property first given. Ide v. Ide, ubi supra. Burbank v. Whitney, 24 Pick. 146. In re Wilcocks’ settlement, 1 Ch. D. 229. In re Stringer's estate, 6 Ch. D. 1. Holmes v. Godson, 8 DeG., M. & G. 152. Gulliver v. Vaux, 8 DeG., M. & G. 167. Shaw v. Ford, 7 Ch. D. 669. Ramsdell v. Ramsdell, 21 Maine, 288. Rona v. Meier, 47 Iowa, 607.

But when a life estate only is given to one, person with a power to dispose of the land in which the life estate is given, and on the death of the first taker the portion of the land remaining undisposed of is given to another, the gift over is valid, and takes effect as to all the land remaining undisposed of on the death of the life tenant, as a remainder. Smith v. Snow, 123 Mass. 323. Taft v. Taft, 130 Mass. 461. Bamforth v. Bamforth, 123 Mass. 280. Gibbins v. Shepard, 125 Mass. 541. Johnson v. Battelle, 125 Mass. 453. Burleigh v. Clough, 52 N. H. 267. In re Stringer's estate, ubi supra.

Whether the first devisee takes a fee or only a life estate with a power to dispose of the land, and whether the power of disposal is only of the life estate or of the whole property, are often difficult questions of construction. Lyon v. Marsh, ubi supra. In re Stringer's estate, ubi supra. Pennock v. Pennock, L. R. 13 Eq. 144. Bowen v. Dean, 110 Mass. 438. Smith v. Bell, 6 Pet. 68. Bacon v. Woodward, 12 Gray, 376. Brant v. Virginia Coal & Iron Co. 93 U. S. 326.

In the case at bar, if the provisions of the first codicil had been such that, if Meins should die without leaving issue living at his death, then the land given him should be equally divided among the sisters and nieces of the testatrix, Meins would have taken a fee in the land determinable on his dying without leaving issue living at his death, with an executory devise over to the sisters and nieces of the testatrix. Such an estate Meins could convey subject to the executory devise ; but it would have been a different estate from an estate for his life, and could not by construction be cut down to an estate for his life. With such a determinable fee, the first codicil actually gives to Meins an absolute power of disposing of the land during his life. The addition of this power cannot well be held to diminish the estate given to Meins, and to cut it down to a life estate. It was the intention of the testatrix, that, if Meins died leaving issue living at his death, he might dispose of what remained by will, or that, leaving no will, it should descend to his heirs.

Such a power of disposal is, we think, inconsistent with an executory devise; and, as the estate of Meins cannot be' cut down to a life estate, it follows that the limitation over is void. Such, we think, is the weight of authority. Ide v. Ide, ubi supra. Gifford v. Choate, ubi supra. Jackson v. Robins, 16 Johns. 537. McRee v. Means, 34 Ala. 349. Jones v. Bacon, 68 Maine, 34. McKenzie's appeal, 41 Conn. 607. Holmes v. Godson, ubi supra.

Andrews v. Roye, 12 Rich. (S. C.) 536, is contra. Stevenson v. Glover, 1 C. B. 448, must, it seems, be regarded as overruled by Holmes v. Godson and Shaw v. Ford, ubi supra. In Kimball v. Sullivan, 113 Mass. 345, it was left undetermined whether the wife took an absolute fee, or a qualified fee with an executory devise over. In Perry v. Cross, 132 Mass. 454, the court held that the conveyance by the wife during her life was valid, and it was unnecessary to determine whether the heirs would have taken anything if the land had not been conveyed by the wife. The attention of the court seems not to have been called to the distinction that in Taft v. Taft, 130 Mass. 461, which it cites, the daughter probably took a life estate only, with a power of disposal, while, in Perry v. Cross, the wife probably took a fee.

As we think the limitation over is void, the demandants, as sisters and nieces of Anna A. Meins, have no title; but, as two of the demandants, namely, Susan C. Johnson and Rebecca M. Riley, are also two of the six heirs of Benjamin R. Meins, Jr., they, as his heirs, are entitled to two undivided sixth parts of the demanded premises, and the tenants, as the four remaining heirs, to four undivided sixth parts.

There cannot be judgment entered for these two demandants for two undivided sixth parts, without striking out from the writ the other demandants. Chandler v. Simmons, 97 Mass. 508. If this is done in the Superior Court, judgment may be entered for the demandants, Susan C. Johnson and Rebecca M. Riley, for two undivided sixth parts, and for damages assessed at one dollar, and for the tenants for the remaining four undivided sixth parts; otherwise, there must be a general judgment for the tenants. Ordered accordingly.