Cumston v. Bartlett

C. Allen, J. The general rule is now well established in this Commonwealth, that a general residuary devise will operate as an execution of a power to dispose of property by will, unless there is something to show that such was not the testator’s intention. Amory v. Meredith, 7 Allen, 397. Willard v. Ware, 10 Allen, 263. Bangs v. Smith, 98 Mass. 270. Sewall v. Wilmer, 132 Mass. 131. The third article of the will of Charles L. Smith contained a general residuary devise, and the only question is whether there is anything sufficient to show that he did not thereby intend to execute the power given to him by the [249] will of liis father. The matters chiefly relied on to negative such intention are, that he never had owned the property of which he had a right of disposition, that he did own other property which would be covered by the residuary devise, and that in. the residuary devise he did not refer in terms to the power, while in the second article of his will he did expressly refer to and recite it. The fact that he never had owned the property is not of much importance. The same fact existed in Bangs v. Smith and Sewall v. Wilmer, above cited. The fact that he owned other property upon which the residuary devise would operate, is one which would usually occur, and is of no controlling weight. The fact that he expressly referred to and recited the power in article two, and omitted all mention of it in article three, is of more significance, and may well raise a doubt as to the testator’s real intention; but even that is open to the suggestion that, having fully stated the power once, he did not think it necessary to do so again. It is to be observed that in disposing of the Minot Hall estate in article two, he at first speaks of it as if it was his own property. He says, “ I then give and devise the said Minot Hall estate, that is, all of my interest therein.” After this, he proceeds to recite the power given in his father’s will, authorizing him to dispose of the one fourth interest whereof he was to have the income for life, and adds, that by virtue of the power thus given he makes disposition of his share and interest in the Minot Hall estate. Having thus dealt with the Minot Hall estate, he went on in article three to devise “ all the rest, residue, and remainder of my estate, both real, personal, and mixed, of which I shall die seised and possessed, or to which I shall be entitled at my decease.” He spoke of the Minot Hall estate in the first place as if it were his own; he afterwards spoke of his share and interest therein, and then he went on to dispose of all the residue of his estate of which he should die seised and possessed, or to which he should be entitled at his decease. The fact that the Minot Hall estate thus spoken of just before was his own only in a qualified sense, carries with it some implication that his disposition of the residue was intended to include all property which was his in the same sense. The language used by the testator in reference to the Minot [250] Hall estate is an illustration of the reason which has led to the establishment of the general rule which now prevails in England (St. 7 Will. IV. & 1 Vict. c. 26, § 27), as well as here, that where one has the use and income of land during life with a power of disposition after death, it is natural for him to consider and treat it as his own property. Nobody else has any control over it or interest in it, provided he chooses to exercise his power of disposition. It seems more probable that this was the testator’s view, in making his residuary devise. Certainly nothing is found in article three, taken by itself alone, to show that he did not intend to include all the property which he had a right to dispose of; and not enough appears in the whole will, with the facts and circumstances disclosed, to take the case out of the general rule. Ordered accordingly.