| Mass. | Jan 3, 1917
The tenants claim title to the land in controversy by mesne conveyances "from Harriet E. Sparhawk, the widow of William Sparhawk. The controlling question in the case is whether there was a valid execution of the power given by'his will in the following paragraph:
“Second, I give, devise and bequeath all my estate, Real, Personal and mixed of which I shall die seized and possessed of to which I shall be entitled at the time of my desease to my beloved wife Harriet E. Sparhawk, to have and to hold the same to her during her natural life, subject only to the condition, that my brother Samuel now a resident of Cheyenne, Wyoming, teritory, shall during his life recieve a comfortable maintainance and support, both in sickness and health, out of my said estate, and I hereby, give to my said wife, H. E. Sparhawk, free power and authority, to use her own descretion as regard the amt nessary for
William Sparhawk died on October 23,1885. In 1893 the widow conveyed a small triangular portion of the demanded premises for the sum of $30, which was full value therefor. In 1904 she conveyed the remainder of the demanded premises for $1,050, a full and adequate price. Among the findings of fact made by the Land Court are the following: “The demanded premises consisted of a house lot in Marblehead with an old house thereon used as a tenement, very much out of repair and standing next to the factory of the tenant shoe company in a very poor neighborhood for tenants. The widow lived in her husband’s former homestead in a very frugal manner, finding great difficulty in paying the premiums for the fire insurance policies on the property of the estate, unable to make proper repairs on the demanded premises, and complaining of the sums of money called for by her brother-in-law, the said Samuel Sparhawk, for his support up to the time of his death in 1906. . . . She stated to the agent who arranged the sale that the demanded premises were a drain upon her, that she was unable to collect any rents, which I find was a fact, and that it was, therefore, necessary for her to sell. . . . I find that at the time of the sale it was necessary for her to use some portion of the principal of the estate, and that if she had the power to exercise her discretion then she exercised it wisely and to the advantage of the demandants in selling the demanded premises, which were unproductive, a source of expense and in need of repairs which she could not make, and in keeping the income producing mortgage; and I find that she acted in good faith.”
It is plain from the language of the second .clause of the will that the testator’s principal purpose was to furnish comfortable support and maintenance for his widow; and, subject to her discretion, to provide for the support of his brother Samuel. In addition to the income of his estate, he gave her unlimited power to sell all or any part of it, — if we take the language of the last sentence literally. Even eliminating the word “ and,” and thereby expressing more clearly what presumably was his real intention,
The foregoing disposes of the demandants’ first and second requests for rulings; her power to sell was not restricted to her "actual needs.” The third was not applicable to the facts, as Mrs. Sparhawk did not mortgage the land in controversy, nor any other so far as appears. The fourth and sixth were rightly refused. In the exercise of the wide discretion to sell all and any part of the estate, real and personal, on the findings she wisely sold the nonproductive property in 1893, and retained the income producing, mortgage. Indeed it was to the advantage of the demandants that she did not spend the mortgage money in repairing the old house, but kept it, using a portion for the support of Samuel until his death in 1906, and of herself until she died in October, 1911.
• The seventh request, which applies only to the deed of the small lot, is disposed of by the cases of Gould v. Mather, 104 Mass. 283" court="Mass." date_filed="1870-03-15" href="https://app.midpage.ai/document/gould-v-mather-6416056?utm_source=webapp" opinion_id="6416056">104 Mass. 283, 290, and Ladd v. Chase, 155 Mass. 417.
The demandants have not argued their exceptions to the rulings given at the request of the tenants, and we treat them as waived.
Exceptions overruled.