Lane v. Lane

Jan 15, 1864

Versions:90 Mass. 350

Hoar, J.

The legacies from this estate having been paid or secured to the satisfaction of the several legatees, and the widow *353having waived her rights under the will, the question presented for our decision is simply this: What estate was given by the will and codicil to the testator’s children ? We think the testator intended to give the property to his children as a vested interest in fee, but wished to prevent a sale or conveyance by them of the interest thus given; inconsistent purposes, which the law cannot caray into effect. Under the codicil we cannot find a trust by implication directly created, the words being apt and sufficient to vest a present interest; and the authority to create a trust after five years, if the parties in interest should elect, excluding the idea that any trust estate was to subsist in the mean time. The wishes of the testator that his real estate should be kept undivided, and as to the appointment of trustees, so far as expressed in the will, can only be regarded, con sistently with the rules of law, as a recommendation, of the same character and weight as the other pieces of advice to his children which accompany his testamentary provisions. The executrix has therefore no interest in the estate as trustee, and the children take it, after payment of debts and legacies, ás a vested estate in fee simple. Decree accordingly.