Hunting v. Damon

Holmes, J. There is no doubt that the limitation over in the second article of the will of James Hunting is void. Kelley v. Meins, 135 Mass. 231. Damrell v. Hartt, 137 Mass. 218. There seems to be equally little doubt that the shifting clause in the third article is valid. Nevertheless, it well may be that, notwithstanding the liability of the plaintiff’s interest in the fund to forfeiture, she has the power to give a good title to any specific property in her hands, and that the condition will attach to the proceeds in place of the property sold. Such a disposition is familiar to the law. Hemhauser v. Decker, 11 Stew. 426. Gray, Perpetuities, § 268. There is a strong argument that the words “ without having made other disposition thereof ” in the second article, and the words “ or the proceeds thereof ” in that article and also in the third, imply a power to sell which would be maimed and futile, and not at all what the testator meant if limited to such defeasible title as the plaintiff has. See Johnson v. Battelle, 125 Mass. 453; Paine v. Barnes, 100 Mass. 470, 471; Harris v. Knapp, 21 Pick. 412, 416 ; Shaw v. Hussey, 41 Maine, 495, 500; Burleigh v. Clough, 52 N. H. 267; Clark v. Middlesworth, 82 Ind. 240; Henderson v. Blackburn, 104 Ill. 227, 232; In re Oertle, 34 Minn. 173; Jarm. Wills, (Bigelow’s ed.) 378, note ; 11 Stew. 427, note. But against this view it may be argued that the power of disposition in the plaintiff assumed by the testator is assumed to be incident to the estate devised, not a new power superadded by the words quoted; Damrell v. Hartt, 137 Mass. 218, 220; and that if the plaintiff can sell only by virtue 444 ‘of her ownership, the purchaser will get no better title than she has. Some cases, as to which we express no opinion, have gone far in this direction. Giles v. Little, 104 U. S. 291. Compare Little v. Giles, 25 Neb. 313. See Kaufman v. Breckinridge, 117 Ill. 305, 313. Although a decision of this court upon the point would be authority, if the question subsequently should be raised by persons not now before the court, it would not be res judicata, and the practice of the court has been not to decree specific performance if there is a reasonable doubt on the construction of the instrument on which the plaintiff’s title depends, and if there are persons not parties who would have a right to dispute the defendant’s title. Butts v. Andrews, 136 Mass. 221. Cunningham v. Blake, 121 Mass. 333. Compare Fry on Spec. Perf. §§ 889, 890. We cannot pronounce the construction of James Hunting’s will to be free from reasonable doubt, and although the ultimate devisees could not dispute the defendant’s title unless the plaintiff should do the acts specified in the third article of the will, in that case they could do so, so that a purchaser would assume ■the risk of litigation. The principle of the Massachusetts decisions applies. Bill dismissed.