163 Mass. 69 | Mass. | 1895
The plaintiff contends that the deed tendered to him conveys less than the fee, because the provisions of Pub, Sts. c. 126, § 4, apply to the devise under which the defendant holds. That statute has no application when the language of a devise shows that the intention of the testator was to give a fee. Weld v. Williams, 13 Met. 486, 496. Barton v. Bigelow, 4 Gray, 353, 357. Hayward v. Howe, 12 Gray, 49. Trumbull v. Trumbull, 149 Mass. 200. For the statute to operate there must be a creation of an estate for life, and then a devise or a grant in remainder to the heirs of the life tenant. As we construe the devise under which the defendant holds, it gives her the fee, and does not create a life estate in her, nor a remainder in her heirs.
The testator gives and devises to his wife by name all his real property, “ for her sole use and comfort during her natural life, and to her heirs and assigns forever.” The words “ heirs and assigns ” are the usual technical words in a deed to signify a fee, and, although unnecessary for that purpose in a will, are commonly used in wills with the same meaning. The use of the word “ assigns ” implies that she has the power of disposal.