Wilson v. O'Connell
147 Mass. 17
Mass.
1888
Check Treatment
Morton; C. J.

The decision of these cases depends upon the question, whether Ellen M. Wilson took under the will of her father, Maurice O’Connell, an estate for life, or an estate tail. The clause of the will under which she takes is as follows: “and the remaining one third to my only daughter, Ellen M. O’Connell, to be enjoyed by her and her husband, should she marry, as long as she lives; become the property of her children, if any, at her decease; and, should she leave no issue, pass immediately at her decease to my heirs at law, without any part, even tenancy by curtesy, remaining in her husband ; and should all issue of her die without issue, their estate shall descend to my heirs at law, this provision comprising only what may come to them through their mother, my daughter.”

We are of opinion, that under this devise Ellen O’Connell took only an estate for life. It contains no words of inheritance ; on the contrary, it expressly declares that the estate is “ to be enjoyed by her as long as she lives.” The natural import of this language is to give her an estate for life, and *20the subsequent provision that her husband was not to have any estate by the curtesy shows that the testator did not intend to give her an estate of inheritance, in which case the husband would be entitled to his estate by the curtesy. There is nothing in the other provisions of the will which shows an intention to enlarge this life estate to an estate in tail. In the devise over to her children, if she shall leave any at her decease, otherwise to the testator’s heirs at law, the children or the heirs will take as purchasers, and not by limitation. The will therefore gives to the testator’s daughter Ellen an estate for life, and a remainder over to her children, if she shall leave any, otherwise to his heirs at law. Any other construction would defeat the intention of the testator. Whether this is a remainder in fee or in tail need not be discussed, because it is immaterial to the decision of this case. If it be conceded to be a remainder in tail, yet it is entirely clear that the life tenant could not, by a deed executed by her, bar the entail. A tenant in tail actually seised of lands may, by a deed, bar the entail and convey an estate in fee simple; or, where lands are held by one person for life with a remainder in tail in another, the tenant for life and the remainderman may bar the entail, and convey the land in fee simple. Pub. Sts. c. 120, §§ 15, 16. But a life tenant alone cannot do this. Holland v. Cruft, 3 Gray, 162. Whittaker v. Whittaker, 99 Mass. 364. Allen v. Trustees of Ashley School Fund, 102 Mass. 262.

It follows, that, as Ellen M. O’Connell had only a life estate in the premises in question, the decree of the Probate Court was erroneous.

Decree reversed.