Whitcomb v. Taylor

Morton, J. By the second clause of the will of Levi Whit-comb, his widow took a life estate in the property left by him, with the right to sell such parts as were necessary for her use and maintenance during her life. The language used imports inly a life estate; she is “ to have and to hold the same to her use and benefit for and during her natural life.” There is nothing in the other parts of the will which, by a fair construction, can enlarge the estate to a fee. This is not a case of a gift of a life estate with a full power of disposition by deed or will, which has sometimes been held to create a fee. Hale v. Marsh, 100 Mass. 468. The testator’s widow had, under this will, no power of disposing of the property by will; and her power to sell, during her life, was not unrestricted, but was a limited power to sell so much as she deemed necessary for her use and maintenance [249] during her life. It is clear that the testator intended that she should take a life estate, and there are no rules of law to prevent carrying his intentions into effect. By the ninth clause of the will the testator gives all the residue of his estate which may be left by his widow, after pa) ing certain legacies, “to Louis Sawyer Whitcomb, recently adopted by me, to him and his heirs forever. But if the said Louis Sawyer Whitcomb shall die leaving no issue, then I give and bequeath all the residue and remainder of my said estate which shall be left by my wife, the said Mary Eveline, and the said Louis Sawyer Whitcomb, at their decease,” to Frances Ellen Sawyer for her natural life. The clause further provides that if Louis Sawyer Whitcomb shall die without issue, the said residue at the decease of Frances Ellen Sawyer shall be equally divided between two nieces and a nephew of the testator. The plaintiff contends that under this clause he took an estate tail. It is the general rule, that if, after a devise to one in fee, a devise over is made in case the first devisee shall die “without leaving issue,” the first taker has an estate tail, and the subsequent devisee a remainder. The reason of the rule is, that the language used implies an intention of the testator that the issue of the first taker should take the estate, after their father, as heirs of his body, and that the devise over should not take effect until the indefinite failure of such issue. Parker v. Parker, 5 Met. 134. Wheatland v. Dodge, 10 Met. 502. Hayward v. Howe, 12 Gray, 49. Allen v. Trustees of Ashley School Fund, 102 Mass. 262. But in the case at bar we think such a construction would defeat the intentions of the testator. The fact that he devises an estate for life to Frances Ellen Sawyer, in case Louis Sawyer Whitcomb should die leaving no issue, with, at her death, a .limitation over to his nieces and nephew, then living, has some tendency to show that he did not contemplate that the devise was not to take effect until an indefinite failure of issue, which might not happen until a remote period. The devise over is of “ all the residue and remainder of my said estate which shall be left by my wife, the said Mary Eveline, and the said Louis Sawyer Whitcomb, at their decease.” This implies that the subsequent devisees were to take the estate which was left at the decease of [250] Louis Sawyer Whitcomb, and not what was left by any of his issue, and points strongly to the conclusion that the testator intended the devise over to take effect at the decease of Whit-comb if he left no issue, that is, upon a definite failure of issue. Upon the whole will, we are of opinion that such was the intention of the testator. This intention can only be carried into effect by construing the will to give to Louis Sawyer Whitcomb a fee determinable in the event of his dying without leaving issue at his decease. Richardson v. Noyes, 2 Mass. 56. Ide v. Ide, 5 Mass. 500. Brightman v. Brightman, 100 Mass. 238. The view we have taken renders it unnecessary to consider whether the decree of this court upon the petition of the plaintiff, by his guardian, to sell the estate, under the St. of 1868, c. 287, was an adjudication as to the construction of this will which is conclusive upon the plaintiff. It follows that the plaintiff’s bill must be dismissed. At the death of the widow of the testator, the estate in question was real estate. Upon the petition of the plaintiff, who, after the death of the widow, was rightfully in possession, it has been converted into personal property by a decree of this court, under the St. of 1868, c. 287. The statute provides that, when a sale is made under it, “ the court shall, if necessary, appoint one or more trustees to hold and invest the proceeds of the sale for the benefit of the persons who would have been entitled to such real estate, and in the same manner as if no sale had been made, and shall fix the form and amount of the bond to be given by such trustees.” The proceeds in the hands of the trustee are to be regarded and treated as real estate, and the plaintiff is not entitled to have them paid over to him. To do so would be entirely inconsistent with the purposes of the statute and of the decree under it, and would change, and might defeat, the rights of the defendants. Bill dismissed.