Paine v. Barnes, 100 Mass. 470

Paine v. Barnes

100 Mass. 470 | Mass. | 1868

Hoar, J.

The title of the plaintiff to the land which she proposes to mortgage in fee is derived from her husband’s will, which devises to her all his real and personal estate “ for her support and benefit during her natural life.” The subsequent clauses of the will dispose of the remainder after the decease of the wife, “ if anything of said estate should remain.”

The court are of opinion that the language of the devise to the wife can only be construed as giving her an estate for life, with a contingent power of disposition of the remainder only in case of its being needed for her support. The fact that there is a remainder devised over, after the estate for life to her, shows that it could not be intended to give her a fee; and that the purpose for which the estate is given can only at the most imply a power of disposal if the exigency should arise. Perhaps, upon the authorities, the use of the phrase “ if anything should remain,” in connection with the d®vise of a remainder of real estate after an estate for life, would imply a power to convey ; as otherwise there could be no reason for the doubt whether the estate would remain. See the cases cited in Hale v. Marsh, ante, 468; Blanchard v. Blanchard, 1 Allen, 223; Andrews v. Bank of Cape Ann, 3 Allen, 313; Lynde v. Estabrook, 7 Allen, 68.

It is an important question, well deserving consideration, whether a power to sell for the purpose of support only, and which would be limited to the extent of the necessity for such support, would include a power to make a mortgage in fee; because the whole estate might be taken on a foreclosure of the mortgage, when only a part of its value was needed for the support, or raised upon the mortgage, and thus the rights of the remaindermen be impaired. This would be better determined in a suit to which those interested in remainder under the will should be made parties.

But, without deciding that question, it appears to us that the demurrer must be sustained, because it is not alleged in the bill that the whole sum of $1500, for which the widow proposed and contracted to mortgage the land, was needed for her support. *472The averment is only that she was desirous of borrowing the sum of $1500 for her benefit and support, the income of the estate being insufficient; and not that the whole of that sum was required. The plaintiff- therefore states no case under which she could give the title which she bargained to convey by the mortgage. Demurrer sustained, with costs.