| Mass. | Jun 18, 1903
Before proceeding to the consideration of this case, we desire to comment upon the form of the report. The report calls for the interpretation of a clause in a will. In such a case, for reasons too obvious to be stated, not only the clause itself but the whole will should be placed before us; and where that is not done we cannot be entirely free from apprehension that something which, if placed before us, would have thrown light upon the question involved, may have been omitted, and, in a close case, that the thing omitted might have led us to a different conclusion. In the report before us no part of the will is contained in the report except the clause upon which the question before us has arisen, and we therefore enter upon the consideration of it with reluctance.
The clause is as follows: “ I devise and bequeath all the rest and residue of my estate, both real and personal, to my wife, Sarepta Twiss, during her life, to use and dispose of the same as she may think proper, with remainder thereof on her decease, one third to the heirs of my brother Isaac Twiss, one third to the heirs of my brother John Gr. Twiss, and the balance to Dora S. Jones above mentioned ”; and the question is whether the life tenant had the power to dispose of any portion of the real estate in fee. It is a narrow and difficult question. If the writer of this will had studied the decisions made in this State and elsewhere, with a view to frame a clause which in that respect
On the one hand it is urged that by the express language of the will there is devised to the wife a life estate only, with the remainder to the other devisees named in the clause; that the word “remainder” is used in its proper technical' sense, namely, as describing an estate limited to take effect and to be enjoyed after the determination of another estate which is created with it, and that in this case the previous estate is a life estate ; that if the testator had meant by the word to indicate only such property as remained undisposed of at the decease of the life tenant, he would have avoided this technical word and would have used some such phrase as “ whatever remains”; that as against the technical meaning of the word “ remainder” the testator, by the phrase “ to use and dispose of the same as she may think proper,” meant simply to emphasize in express language the powers over the property which are conferred by law upon the life tenant as such, just as sometimes similar language following a devise in fee has been held to describe expressly only what the law would have implied, and therefore to be of no real legal effect. See Veeder v. Meader, 157 Mass. 413" court="Mass." date_filed="1892-11-25" href="https://app.midpage.ai/document/veeder-v-meader-6424358?utm_source=webapp" opinion_id="6424358">157 Mass. 413.
On the other hand it is urged that the word “ dispose ” is broad enough to include a conveyance in fee, and that to limit its operation to only such power as the law gives to a life tenant strictly as such is to give to it no meaning at all; that the word “ same ” clearly refers to the property itself and not merely to the life estate, (see the language of Chapman, C. J. in Cummings v. Shaw, 108 Mass. 159" court="Mass." date_filed="1871-10-15" href="https://app.midpage.ai/document/cummings-v-shaw-6416607?utm_source=webapp" opinion_id="6416607">108 Mass. 159, in which case, however, there was no devise over,) and that the word “ remainder ” is not used in its technical sense but simply means whatever property shall remain undisposed of at the time of the decease of the life tenant. See 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.
The facts respecting the circumstances of the testator and his relation to the objects of his bounty as set forth in the report, bear some in favor of one interpretation and some in favor of the other. The testator had no children, and the life tenant was his second wife. His property was not large, and he may have felt that the income would be insufficient for her support.
On the whole we are inclined to the view that the word “ same ” refers to the property and not to the life estate; that the word “dispose” includes a disposition by a conveyance absolute and in fee simple, and that therefore the life tenant had the power during her life to make such a conveyance of a part or the whole of the property; and that the word “remainder,” while used in a technical sense, must still be held as subordinate to the power given as above stated to the life tenant and as liable to be defeated as to any part of the estate over which the power is exercised. This construction gives effect to the clause conferring the right to dispose, is not inconsistent with the technical meaning of the word “ remainder,” but simply makes the estate described by it, while vesting upon the decease of the testator, yet defeasible by the exercise of the power conferred upon the life tenant. In a word, it gives effect to every clause, and is not inconsistent with what might reasonably be supposed to have been the intention of the testator. For cases where language somewhat similar to that used in this will has been construed in this State, see Cummings v. Shaw, 108 Mass. 159" court="Mass." date_filed="1871-10-15" href="https://app.midpage.ai/document/cummings-v-shaw-6416607?utm_source=webapp" opinion_id="6416607">108 Mass. 159; 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; Knight v. Knight, 162 Mass. 460" court="Mass." date_filed="1894-11-30" href="https://app.midpage.ai/document/knight-v-knight-6425095?utm_source=webapp" opinion_id="6425095">162 Mass. 460, and cases cited; Collins v. Wickwire, 162 Mass. 143" court="Mass." date_filed="1894-10-17" href="https://app.midpage.ai/document/collins-v-wickwire-6425016?utm_source=webapp" opinion_id="6425016">162 Mass. 143; Sawin v. Cormier, 179 Mass. 420" court="Mass." date_filed="1901-06-19" href="https://app.midpage.ai/document/sawin-v-cormier-6427555?utm_source=webapp" opinion_id="6427555">179 Mass. 420; Lewis v. Shattuck, 173 Mass. 486" court="Mass." date_filed="1899-05-20" href="https://app.midpage.ai/document/lewis-v-shattuck-6426751?utm_source=webapp" opinion_id="6426751">173 Mass. 486; Burbank v. Sweeney, 161 Mass. 490" court="Mass." date_filed="1894-06-19" href="https://app.midpage.ai/document/burbank-v-sweeney-6424968?utm_source=webapp" opinion_id="6424968">161 Mass. 490; and for cases decided elsewhere, and which seem somewhat in conflict with each other, see Roberts v. Lewis, 153 U.S. 367" court="SCOTUS" date_filed="1894-05-14" href="https://app.midpage.ai/document/roberts-v-lewis-93904?utm_source=webapp" opinion_id="93904">153 U. S. 367; Giles v. Little, 104 U.S. 291" court="SCOTUS" date_filed="1881-12-12" href="https://app.midpage.ai/document/giles-v-little-90455?utm_source=webapp" opinion_id="90455">104 U. S. 291; Little v. Giles, 25 Neb. 313" court="Neb." date_filed="1889-01-15" href="https://app.midpage.ai/document/little-v-giles-6645949?utm_source=webapp" opinion_id="6645949">25 Neb. 313 ; Brant v. Virginia Coal & Iron Co. 93 U.S. 326" court="SCOTUS" date_filed="1876-12-18" href="https://app.midpage.ai/document/brant-v-virginia-coal--iron-co-89382?utm_source=webapp" opinion_id="89382">93 U. S. 326 ; Patty v. Goolsby, 51 Ark. 61" court="Ark." date_filed="1888-05-15" href="https://app.midpage.ai/document/patty-v-goolsby-6542274?utm_source=webapp" opinion_id="6542274">51 Ark. 61; Whittemore v. Russell, 80 Maine, 297.
Decree for the petitioners as ordered.