Wells v. Hawes

Lord, J. Under the will of Roxana Phelps, Bridgman took the demanded premises in fee simple, subject to no trust by reason of any written memorandum left by the testatrix. Thayer v. Wellington, 9 Allen, 283. If a memorandum was left by the testatrix, and the devisee was in good faith attempting to carry into effect the wishes expressed therein, he offered no competent testimony upon the subject.. He could not give oral testimony of the contents of the memorandum, and there was no suggestion that he had not in his possession the original memorandum, if any ever existed. It is not necessary, therefore, to discuss the question whether, in case a devise is made for the purpose of carrying out the secret wishes of a testator, not manifested .according to the formalities required by the statute of wills, a creditor of the devisee may interpose, and by attachment prevent the devisee from executing in good faith the wishes of the testator. The power of sale given by the will is not the power to sell to pay debts, but is evidently for the purpose of enabling the executor to carry into effect the purposes of the memorandum mentioned therein. The will, therefore, gave no power of sale upon any facts offered to be proved by competent evidence. The sale made is not, therefore, valid as the execution of a power under the will; nor does it purport to be, nor was it, in fact, under a license from the Court of Probate. The attachment by the demandant, perfected by a subsequent levy, vested the title in her, against which the deed of the executor or devisee is not a defence. Exceptions overruled.