Durant v. Smith

Field, C. J. Mary A. Holmes, the testatrix, died on November 28, 1890, leaving no issue, and no father, mother, or sister, and as her only brother the defendant Edward M. Smith, who was her sole next of kin. Her other near relations were uncles and aunts, and the children of deceased uncles and aunts. The will was executed in November, 1887, and her husband and son then were both alive. Her son died on September 4, 1890. Her husband died on December 24, 1891, intestate, leaving as his only heir and next of kin, his father, the defendant Lysander F. Holmes. One of the answers avers that her husband after the making of her said will “ became insane, -and was thereby rendered incapable of exercising any discretion or judgment in the matter ” of the disposition of the property under the third clause of the will, and, as the case is reserved on the bill and answers, this averment must be taken to be true. There is no doubt that the will is a valid execution of the power of appointment reserved in the deed of trust, and the question is whether, by the third article of the will, the husband took the property therein given him absolutely for his own benefit, or took only a life estate, or took the property partly upon trust for the benefit of some of the relatives of the testatrix. The words clearly give the entire legal estate to the husband. It is also clear, we think, that the right is impliedly given him to expend for his own use so much of the property as he may choose. The request “ that my dear 233 husband assign by will what of this property I now leave him he has not expended to such of my relatives as he in his judgment may think may need it” recognizes the power of the husband to give by his will the part of the property which he docs not spend to such of the relatives of the wife as he may think need it. We are of opinion that the husband took the property absolutely, and that the request does not constitute a trust, but a recommendation to the husband, which, if he had continued sane, he might have regarded and in his own way carried into effect, but which did not affect his title to the property. Sears v. Cunningham, 122 Mass. 538. Sturgis v. Paine, 146 Mass. 354. Joslin v. Rhoades, 150 Mass. 301. Mussoorie Bank v. Raynor, 7 App. Cas. 321. Decree accordingly.