92 Mass. 263 | Mass. | 1865
This cause has been delayed for some time under advisement, and has been repeatedly considered by the court. It presents a question of very great difficulty, and one which not only permits something of much force to be said on each side, but of which a decision either way is not likely to be wholly satisfactory. Still it is our duty to decide it, and to give the best interpretation in our power of the very doubtful lan guage used by the testator whose will and codicil we are required to construe.
In Amory v. Meredith, 7 Allen, 397, it was held that the rule adopted by the English courts of equity, in determining whether a general power of disposing of property was executed by a
The case at bar differs from that in the important particular, that here the beneficial use under the deed of trust which created the power was not reserved to the testator, unless perhaps by implication upon the remote contingency of all his children dying without issue before him. The power was also created after the execution of the will.
But in looking at the language of the codicil, considered in relation to all the circumstances of the case, we have come to the conclusion that the will is an execution of the power reserved by the trust deed, and that neither of the considerations adverted to is decisive against it.
The will, made in the year 1853, provided for the testator’s wife, then living, in a manner which became inoperative and unimportant upon her death; and gave the whole residue of his property in trust for his children and their issue. In 1860, his wife having died, and his children being arrived at adult age, and some of them married, by a deed of trust he conveyed one undivided fourth of a valuable parcel of real estate which constituted the bulk of his property, to three trustees, two of whom were also trustees under his will, in trust for his six children, by name, and their issue; and in case of their death without issue, in trust for his own heirs. He reserved to himself the most complete and absolute power, by deed or will, to alter the uses or the trusts. In 1862 he married again.. In 1863. he lost one of
It is to be observed that in the will, and in the deed of trust, the testator had preserved the most careful equality among his children in the amount of property appropriated to their use. One of his children had died; and he wishes to give' his wife one sixth of his whole estate and property of which he should die possessed. This proportion is chosen for the reason that it will put her on an equality with his children. Such we think is the fair interpretation of his language. If then we find that under the rule in Amory v. Meredith “ the property of which he should die possessed ” would be presumed to include, in his own understanding of the phrase, property which had been his own and of which he retained the absolute and unlimited power of disposal, the devise to her would include the estate held under the deed of trust. It would give his wife the exact position of the child he had lost. The phrase “ legal share,” it is argued, indicates that he meant the share which would have gone to a child if he had died intestate. But we think this was not the sense in which the testator used the word. He would hardly have thought that he was giving a new child his full legal share of his estate, if there were a considerable proportion of his property, entirely subject to his disposal by will, appropriated exclusively to his other children, and in which that child was not allowed to participate.
We are not unmindful of the force of the suggestion made by Lord St. Leonards, in commenting on the case of Moss v Harter, that “ when the property is settled by the testator himself
The view which we have taken is strengthened, in our judgment, by the express ratification and republication of the will which the codicil contains. This makes the will speak as from the date of the codicil; and the disposition being construed to refer to all the property of which the testator had then the absolute power of disposal, these two considerations will bring the case substantially within the principle of the decision of Stillman v. Weedon, 16 Sim. 26, upon the effect of the 24th and 27th sections of the English Statute of Wills of 1 Vict. c. 26. The cases in which the republication of a will has not been held to give it the effect of executing a power created after the original date of the will seem all to stand upon peculiar phraseology indicative of the intent of the testator.
As ye hold that the power is executed by the codicil upon the one sixth part given to Mrs. Ware in fee, it follows that the testator, by dealing with the property subject to the power, gives a sufficient indication of an intention to execute it wholly; and that the residue of the estate conveyed by the deed of trust is appointed to be held upon the trusts set forth, and by the trustees named, in the will. Standen v. Standen, 2 Ves. Jr. 589. And it is a highly reasonable presumption that the testator would not have desired that undivided interests in the same piece of property should be held after his decease by separate trustees, when the whole was intended for the benefit of the same persons. The construction which we give to the codicil seems most likely to effect his intention ; and we think it can be reasonably deduced, though not with absolute clearness and certainty, from the language in which his purposes were expressed.
A decree will be entered that the codicil operates as an execution of the power of disposal of all the property conveyed by
