Sawin v. Cormier

| Mass. | Jun 19, 1901

Holmes, C. J.

This is an action for refusing to perform an agreement to purchase certain land left to the plaintiff by her husband. It is here by appeal after judgment for the plaintiff upon agre'ed facts, of which the foregoing and the will alone are important. The only question is whether the will enables the plaintiff to give a good title.

The material words are as follows: “All the rest of my Estate both Real and Personal I give to my beloved wife Frances Burton Sawin, to have and to hold at her free will and disposal during the remainder of her life; at her death such portions of the Estate as may remain, I hereby direct and bequeath to my daughter Cora Frances Osgood or her heirs. In case of her death, and leaving no children, I hereby bequeath the remainder to be divided equally between my otilar legal heirs.”

“ To hold at her free will and disposal ” are stronger words than naturally would be used for the enjoyment of a life estate without more. Ford v. Ticknor, 169 Mass. 276" court="Mass." date_filed="1897-10-20" href="https://app.midpage.ai/document/ford-v-ticknor-6426101?utm_source=webapp" opinion_id="6426101">169 Mass. 276, 280. The meaning is made clearer by the words “ such portions of the estate as may remain.” Gifford v. Choate, 100 Mass. 343" court="Mass." date_filed="1868-11-15" href="https://app.midpage.ai/document/gifford-v-choate-6415527?utm_source=webapp" opinion_id="6415527">100 Mass. 343, 346. Attorney General v. Hall, FitzG. 314, 321. Taking the two together, wé are of opinion that the testator left to the disposal of the plaintiff how much of his estate should remain, and therefore that she had at least a power to convey a fee. Johnson v. Battelle, 125 Mass. 453" court="Mass." date_filed="1878-10-21" href="https://app.midpage.ai/document/johnson-v-battelle-6419397?utm_source=webapp" opinion_id="6419397">125 Mass. 453.

Judgment for plaintiff.