100 Mass. 528 | Mass. | 1868
We are of opinion that the devise to Mrs. Georgiana W. Richardson, in the fourth clause of the will of Mrs.
The terms of this devise are clearly such as, if Mrs. Richardson had not been a married woman, would have given her a legal estate in fee ; the use declared being executed by the statute of uses. But the fact of her coverture, with the statement that the devise to Mr. Stodder is in trust, sufficiently indicate the intention not to create a mere use to be executed under the statute, but a trust during the coverture. Ayer v. Ayer, 16 Pick. 327. The estate of the trustee, however, will only be held coextensive with the duties of the trust. As was said by Baron Parke in Barker v. Greenwood, 4 M. & W. 421, 429, “ there is no doubt that the general rule of law is, that wherever there is a limitation to trustees, although with words of inheritance, the trustees are to take only so much of the legal estate as the purposes of the trust require.” The devise of a fee to Mrs. Richardson is therefore to be construed as creating an equitable estate during coverture, and a legal estate afterward, the use being executed upon the termination of the trust. But this does not change the nature of the estate, so as to limit or diminish it in her, or otherwise affect it, except to change it from an equitable to a legal estate in fee simple. There is, in our judgment, no legal principle which will prevent the same person from holding an equitable interest, to be changed into a legal interest upon the happening of a future event. The equitable estate does not merge in the legal, unless they are of commensurate extent, and are united in the same person at the same time. Selby v. Alston, 3 Ves. 339. Morgan v. Moore, 3. Gray, 319. Barrus v. Kirkland, 8 Gray, 512. In Goodtitle v. Whitby, 1 Burr. 228, a devise of lands to trustees and the survivor of them, and the heir of the survivor, in trust to apply the profits to the maintenance of the testator’s two nephews, and, when they shoulu
The statutes which enable married women to take and hold property to their separate use do not affect the construction of a gift in trust for them; because their statute right of disposal is not absolute and unqualified, and the statutes themselves contemplate the necessity or expediency in some cases of the intervention of trustees. Gen. Sts. c. 108, § 4.
It follows, from this construction of the devise, that the plaintiff has a tenancy by the curtesy in the real estate, and is entitled to recover from the defendant the whole of the income received by him since the death of the wife. The equitable fee descended to the two children; the use became executed in them by the statute, of uses; and upon the death of one, under age and unmarried, the other inherited her share. Gen. Sts. e. 91, § 1, cl. 6. Judgment for the plaintiff.