Crossman v. Field

Gray, C. J. The intention of the testatrix to give an estate in fee to her niece is manifested in several ways : 1st. By the use of the words “ all my property, both real and personal, of whatsoever name or kind,” which, in a will, ordinarily pass a fee. Godfrey v. Humphrey, 18 Pick. 537. Leland v. Adams, 9 Gray, 171. Lincoln v. Lincoln, 107 Mass. 590. 2d. By the addition of the words “ except what shall be disposed of hereafter,” which confirm the presumption that the testatrix did not intend to die intestate as to any part of her estate. Tracy v. Kilborn, 3 Cush. 557. Gleason v. Fayerweather, 4 Gray, 348. 3d. By the subsequent description of the subject of the devise as the “ property which I now give to her.” See cases under first point, supra. 4th. By contrast with the devise over of “the improve only” to Edward Crossman, giving him but a life estate. Fay v. Fay, 1 Cush. 93. 5th. By the consideration that if the word “ it ” in the final limitation to Ebenezer and Daniel imports a fee, (and so would prevent an intestacy as to the remainder, as would be the case if they should take only a life estate,) the implication is unavoidable that a like fee had previously been devised, which could only be to the niece. The proviso that if the niece “should not live” is exactly equivalent to “ if she should die,” or “ in case of her death,” and (as she must die at some time, and no'other period is mentioned in the will) must apparently be construed “ if she should not ■ survive me,” the testatrix. Briggs v. Shaw, 9 Allen, 516. 2 Jarman on Wills, c. 48. But if the will could be construed to give the niece an estate in fee, subject to be devested upon her dying before Edward Crossman, she did in fact survive- him, and the contingency upon which her estate would be devested has not arisen. Brightman v. Brightman, 100 Mass. 238. Kimball v. Tilton, 118 Mass. 311. The legal effect of- all the provisions of the will is too clear to be restricted by the mention of the purpose of the devise to the niece as for her “ maintenance, support and bringing up ; ” by the appointment of Edward, or in certain contingencies Daniel, [173] to be her guardian; or by the consideration that, if the niece takes a fee, some of the limitations over may be repugnant and void. Judgment on the verdict.