173 Mass. 486 | Mass. | 1899
This is an appeal from a decree of a single justice upon appeal from the Probate Court construing the will of Sumner Shattuck, and also an appeal from another decree of the same justice upon the second account of Sumner Shattuck’s executor, requiring him to charge himself in accordance with the construction given to the will.
The executor charged himself with eighteen hundred dollars received from the sale of real estate, and asked to be allowed for a payment of one thousand dollars out of that sum to the widow. The decrees of the single justice disallowed the pay
The material parts of the will are as follows: “ Secondly, I give, bequeath, and devise to my beloved wife Emerline Shat-tuck all my estate remaining after the payment of my just debts and funeral expenses as above specified both real and personal and mixed, wherever to be found, for her own use and benefit, during her natural life upon the condition that she the said Emerline remains my widow and that she the said Emerline is not to make a gift or donation out of said property to any of her heirs or blood relation. Thirdly, I give, bequeath, and devise to my lawful heirs all that remains of the property devised above to my wife Emerline Shattuck, at her decease or at her second marriage.” The executor is given a power of sale.
It may be that the words in which the testator made a gift to his wife, “ for her own use and benefit, during her natural life,” conveyed to his mind the notion of an absolute power of disposition on her part. The provision that she was not to make a gift out of said property to any of her heirs or blood relation suggests that notion, as does also the limitation of “ all that remains ” after her death by way of remainder. But this is conjecture. On the other hand, the words of limitation taken by themselves create a life estate and nothing else. They are perfectly clear and free from doubt. We cannot enlarge or change their meaning to one which they are not apt to convey according to common speech or technical use, on the strength of such slight indications as those mentioned above. No evidence dehors the will could have that effect, and for other language of the instrument itself to do so it would have to be very clear. See White v. Sawyer, 13 Met. 546; Blanchard v. Blanchard, 1 Allen, 223, 225; Whitcomb v. Taylor, 122 Mass. 243. In Fiske v. Cobb, 6 Gray, 144, cited for the executor of Sumner Shattuck’s executor, the legacy was not a life interest but an absolute gift, which at most was only possibly liable to be cut down.
Where money is given for life with remainder over, if no trustee is appointed, the executor is to hold the fund and is to pay the interest only to the person entitled for life. Dorr v. Wainwright, 13 Pick. 328, 331. White v. Massachusetts Institute
Decrees affirmed.