293 Mass. 555 | Mass. | 1936
This is a bill in equity which was reserved and reported by a justice of this court for determination by the full court, under G. L. (Ter. Ed.) c. 231, § 111. The purpose of the bill is to settle the title to a certain parcel of real estate situated in Vineyard Haven in this Commonwealth. An agreement between the parties is printed in and made a part of the record.
It appears that one David Smith owned a certain lot of land with a dwelling house thereon in the village of Vineyard Haven (part of the town of Tisbury) in this Commonwealth, and that he occupied the premises as his residence until his death; title thereto then passed to his daughter, Eliza C. Lord. Thereafter the premises were occupied as a residence by her and her husband, Edward C. Lord. She died testate and her will was duly admitted to probate on March 7, 1924. It contained among others the following clauses: “Second: I give and devise the premises now occupied by me as a residence in the village of Vineyard Haven, and which was formerly the residence of my father, David Smith, unto my husband Edward C. Lord, for and during the term of his natural life with full power to sell, mortgage, exchange, or otherwise dispose of the same and to give good title thereto to the said premises, and to use and dispose of the proceeds therefrom in any manner he may choose for his own comfort, pleasure, and benefit. But in the event of the death of my husband without having sold, mortgaged, exchanged, or otherwise disposed of the said premises, I hereby give and devise the same unto Alphonso H. Smith of New Bedford, Massachusetts, and in the event of his death previous to my own demise, to the legal heirs of said Smith then living. Third:
Eliza C. Lord was survived by her husband Edward C. Lord, by the defendant Alphonso H. Smith and by Millicent C. Smith. Thereafter, under date of March 28, 1924, Edward C. Lord executed a mortgage to the Martha’s Vineyard National Bank for the sum of $2,500 upon the real estate above referred to. The note and mortgage were signed “Edward C. Lord.” The property so mortgaged had at that time, and still has, a value of not less than $6,500. The mortgage was recorded; it is outstanding, and the principal of the note is overdue, and has not been paid in full. The note was transferred by the bank to James A. Boyle, one of the defendants, under date of May 17, 1935, and immediately thereafter he made an entry upon the property for the purpose of foreclosing the mortgage under G. L. (Ter. Ed.) c. 244, § 1. Edward C. Lord duly qualified as executor of the will of Eliza C. Lord, and his first account as executor for the period March 7, 1924, to March 27, 1925, was allowed by the Probate Court on June 2, 1925. Subsequent to April 1, 1924, Edward C. Lord married the plaintiff Emma C. Lord and resided with
On April 1, 1924, Edward C. Lord opened a bank account in the Martha’s Vineyard National Bank in the name "Est. Eliza C. Lord. E. C. Lord Exec.” The first deposit of $2,424.50 therein was the proceeds of the mortgage. The account shows checks drawn in the same amount as shown in schedule B of the executor’s account of Edward C. Lord, above referred to, except items 8, 20 and 23 which were cashed at approximately the dates shown in the schedule. In addition two checks (for $14.74 and $193.73 respectively) appear in the transcript of checks which aggregate the amount of item 8 of schedule B.
Subsequent to the death of Edward C. Lord the defendant Alphonso H. Smith entered upon the premises claiming that title thereto had vested in him under the provisions of the will of Eliza C. Lord. Thereafter the real property of Smith was attached by the defendants Cromwell and Robinson in an action of law which they had pending against him. Judgment was entered in that action in favor of Cromwell and Robinson, and execution issued to them in the sum of $1,281.74. Cromwell and Robinson delivered the execution to the defendant Dexter, who is the sheriff of the county of Dukes County. The execution is held by the sheriff and has not been satisfied. Cromwell and Robinson propose to sell the property as that of Smith in accordance with G. L. (Ter. Ed.) c. 236, § 26. This bill is brought to restrain the sale, and to declare that the plaintiffs are the heirs of Edward C. Lord, and that upon payment of the amount due on the mortgage by the plaintiffs to the defendant Boyle he be ordered to discharge the mortgage.
The extent and meaning of the clauses in the will granting a power of disposal must be interpreted in view of all these provisions. The questions for decision are whether under the terms of the second clause a mortgage of the premises by the life tenant would extinguish all rights of
The pertinent words of the second clause of the will are: “But in the event of the death of my husband without having sold, mortgaged, exchanged, or otherwise disposed of the said premises, I hereby give and devise the same unto Alphonso H. Smith.” This language is a repetition of the earlier statement in the same clause providing that the life tenant could “sell, mortgage, exchange, or otherwise dispose of” the premises and use the proceeds. The testatrix clearly intended that her husband could completely divest himself of any interest in the premises, or partially divest himself thereof by way of mortgage, and use the proceeds “for his own comfort, pleasure, and benefit.” She intended to provide in her will for all possible ways in which he could use the premises to raise proceeds for his use, even to the extent of a sale of the property. In the remainder clause she simply repeated these various methods. The most that these clauses show is that the life tenant could use the premises in any way he desired to raise money even to the extent of complete disposal thereof. Nowhere does it appear, however, that a mortgage without more, amounting to an incomplete disposal, was to cut off the remainderman Smith from the equity which remained. The testatrix intended to provide for her husband to the fullest extent, but it is also manifest that what remained of the real estate was to go to the remainder-men. This would apply to a remainder after a sale of a * part of the property, or to the equity remaining after a mortgage had been placed thereon. There is no general intent manifest to cut off the remaindermen by means of a mortgage when a valuable equity in the property remains. It is apparent that the remaindermen are to have the premises, if there is anything left. No disposition of the equity is made if the remaindermen do not get it. An
It is manifest that the words “sold” and “exchanged” mean a complete divestment of the property. The word “mortgaged,” however, generally does not mean a complete divestment of property, but means only the creation of an estate, absolute in form, but intended to secure the performance of some act, such as the payment of money by the mortgagor, and to become void if the act is performed. If the mortgage is foreclosed, then a complete divestment would result. The language of the will in the second clause is susceptible of the meaning that it was a mortgage which would result in such complete divestment, and that it was so intended by the testatrix. Although decisions may be found wherein these words have been held to include a mortgage which has not been foreclosed, other decisions where the words have been used are held to mean a complete divestment of title. Ham v. Missouri, 18 How. 126, 133. The meaning depends upon the context in which they are used. The complete nature of the divestment intended by the words “sold” and “exchanged” is plain, and when read with the words “mortgaged,” “or otherwise disposed of,” the meaning that may be attached to “mortgaged” is a complete divestment resulting from the giving of the mortgage and a failure to perform. This construction is not contrary to the language used, but would seem to be in accord with the intention of the testatrix. When the whole clause is read together the general intent from the use of the words “otherwise disposed of” plainly shows a complete divestment of the mortgaged premises by the life tenant. This conclusion is supported by the language of the third clause of the will, wherein the furniture and goods were given to the husband of the testatrix on the same terms as the real estate, and then “in the event of his
There is nothing in the record to indicate that this equity was intended to be disposed of by Edward C. Lord in execution of the power which was given him by the will. If it were not the remaindermen would not be cut off. Boston Safe Deposit & Trust Co. v. Prindle, 290 Mass. 577, 584. The burden of proving a valid exercise of the power rests on the party claiming the execution. Stocker v. Foster, 178 Mass. 591, 602. The form of the mortgage did not indicate that it was meant to operate as a complete execution of the power. The husband .of the testatrix was not only a life tenant with power of disposal, but was the executor of the will. He deposited the proceeds obtained by the mortgage in a bank in an account in the name of his wife’s estate, and applied the money so received to a large extent to the payment of debts of the estate. This
It follows that by the terms of the will of Eliza C. Lord the defendant Alphonso H. Smith is entitled to the real estate described in the second clause of the will, subject to the mortgage given by Edward C. Lord to the Martha’s Vineyard National Bank; and also subject to whatever rights the defendants Cromwell and Robinson may have by virtue of the judgment obtained by them against Smith.
Ordered accordingly.