Whipple v. Fairchild

Morton, C. J. The only question presented by this report is whether Silas Fairchild took, under the deed of trust of his father to Hawkes, any estate which was assignable by him during the life of his father. By this deed, the Merry Place, so called, is conveyed to Hawkes upon the following trusts : 1st. To allow the grantor to occupy the premises and to receive the rents and profits. 2d. To join with the grantor in such conveyance as he should make, if the trustee in his discretion should deem it expedient. 3d. After the death of the said grantor, or at any time before his death, if the said trustee should be thereto requested by all the children then living and the wife of the grantor, the said trustee was to convey said property, in the former case to the heirs of the said grantor, and in the latter case to the grantor, or to such person or persons as he should nominate. The grantor did not convey during his life, and the case presented is in substance one of conveyance upon the trusts that the grantor shall have the use of the property during his life, with a qualified power of appointment, and that at his death it shall be conveyed to his heirs. [265] We are of opinion that each of the children of the grantor took, under this deed, an equitable interest, which, although it might be defeated by the contingency, either of his death before the father, or of the father’s conveying under the power, was assignable by him, subject to such contingencies. In Putnam v. Story, 132 Mass. 205, a fund was bequeathed upon the trusts, to pay the income to the daughter of the testatator during her life, and at her death “ the capital sum to be equally divided among the heirs ” of the said daughter, “ share and share alike.” It was held that the children of the daughter took vested interests, which they could assign during the life of their mother. The only material difference between that case and this is, that, in the case at bar, the life tenant had a conditional power of appointment. The vesting of their interests in possession might have been defeated by the exercise of this power; but we do not see how the existence of the power affected the nature of the estate of the children, except that it rendered it defeasible. As the power was not executed, their estate has not been defeated, but took effect secundum formam doni, as if the power had not existed. Moore v. Weaver, 16 Gray, 305. We are therefore of opinion, that the deed of Silas Fairchild to Frazier conveyed the equitable interest in the Merry Place, which the grantor, at the time it was given, had under the deed of trust; and it follows that the plaintiff is entitled to a conveyance of one undivided sixtieth part of it, subject to the payment of any legal charges which the trustee has against the estate. Decree accordingly.