Davis v. Mailey

Field, J. The construction we give to the will of Joseph Davis is that Emily Davis took all the estate in real property, which the testator could lawfully devise, for “ her sole use, benefit and disposal; ” and that the expression of a desire on the part of the testator that “ whatever may be left of my estate, if any, she may by will or otherwise give to those of my heirs that she may think best, she knowing my mind upon that subject,” is not to be considered as imperative. The words, “ I am willing to leave the matter entirely with her, feeling satisfied that she will do as I have requested her to in the matter,” taken in connection with the preceding provisions and the fact that the particular heirs are not designated by the testator, but are left to be determined as Emily Davis may think best, indicate that the testator intended to leave the disposition of the entire property devised to the devisee, unfettered by any legal obligation on her part to dispose of it to any particular persons ór in any particular way. This construction renders it unnecessary to determine whether, if the recommendation were intended to bind the devisee, it would not be repugnant to the devise or void for uncertainty. Gen. Sts. c. 92, § 5. Gleason v. Fayerweather, 4 Gray, 348. Bacon v. Woodward, 12 Gray, 376. Spooner v. Lovejoy, 108 Mass. 529. Gifford v. Choate, 100 Mass. 343. Hess v. Singler, 114 Mass. 56. Petition dismissed.