Gibbins v. Shepard

Soule, J. The moneys in the hands of the administrator are the proceeds of real estate of his testator, sold for the payment [543] of debts, remaining after such payment. He is responsible for the proper disposition of them, and therefore entitled to ask the instruction of this court as to the true construction of the will under which he is acting. His application contains no prayer for process, and is in the form of a petition rather than of a bill in equity; but as no objection was made by the defendants to the maintenance of the proceedings on this ground, and as any deficiency in this regard is open to amendment; Belknap v. Stone, 1 Allen, 572 we refer to the matter only for the purpose of saying that the proper practice is to proceed by bill, in the regular form. The case presents a single question of construction. In determining it, we must ascertain, if possible, the intention of the testator, and give effect to that intention, unless prevented by some established rule of law. As to one third part of the residue of the estate after payment of the debts and expenses of administration, it is clear that the widow takes the fee. The language of the will is apt and full thus far. As to the remaining two thirds, the language is peculiar. “ The other two thirds I leave in her power, and bequeath to her for her support during her lifetime, and leaving it as an injunction on her to divide it on the children at her death, as she deems best, and as they deserve.” It is contended on the part of the children of the testator, that, under this provision, the widow takes a life estate only, with a power of appointment by will among the children, at her discretion. We are of opinion, however, that this is not the true construction. The words “ I leave in her power,” coupled with the other language of the devise, are equivalent to the words, “ with power to dispose of the same as she shall think proper.” This being so, the widow took at least an estate for life, with a power to convey the fee and to receive the proceeds. Cummings v. Shaw, 108 Mass. 159. The real estate having been sold by the administrator for payment of debts, the balance of the proceeds in his hands, after such payment, must go to the person whom the will authorizes to convey the estate. If the subsequent words, enjoining the widow to divide the estate on her death on the children,.make a good devise over, such devise would take effect in case of a failure by [544] the widow to convey during her life. Smith v. Snow, 123 Mass 323. But the conveyance having been made, the widow is entitled to receive the remaining proceeds, and to use them at her discretion for her support. No trust is created by the will in favor of the children. Bamforth v. Bamforth, 123 Mass. 280. Decree accordingly.