Bangs v. Smith

Bigelow, C. J. We think it clear that the testator intended that the will should operate on the property held by the trustee subject to the power of appointment provided by the indentures of trust under which the legal title was vested in him. It appears that the testator had the entire beneficial interest in all the property so held in trust. The whole income was to be paid to him during his life, and the jus disponendi was vested in him. It cannot be doubted that the testator intended to dispose of all of his property by will which could pass by devise or bequest. He makes specific provisions by legacies for a son and two grandsons, and, after giving one third of the residue to his wife, he disposes of the other two thirds by a general residuary clause. Booking at these. provisions, it seems to us to be much more easonable to suppose that he intended that the property of v, hich the trustee held only a bare legal title for the sole use and benefit of the testator subject to appointment by his last will should pass under it, than that he intended to leave it to his heirs at law as undevised property. The specific provisions which he carefully made for certain of his heirs at law, de 274 priving them of any large share in his property under his will exclude the conclusion, that he did not intend the residuary clauses to operate on the property held in trust under the indentures. The case seems to us to fall within the doctrines stated in the recent cases of Amory v. Meredith, 7 Allen, 397, and Willard v. Ware, 10 Allen, 263. The property held by the trustee under the deed from White, not being subject to a power of appointment by the testator, must be disposed of according to the declaration of trust on which the complainant holds the legal title. Decree accordingly.