Cushing v. Spalding

Morton, J. The condition against alienation was clearly void. Hawley v. Northampton, 8 Mass. 3, 37. Gleason v. Fayerweather, 4 Gray, 348, 353. Todd v. Sawyer, 147 Mass. 570, 571. Winsor v. Mills, 157 Mass. 362. The provision in regard to building upon the real estate, or continuing to use it as a farm, forms part of the condition. The testatrix attempts to mitigate the condition against alienation by providing that, though the estate shall not be sold, it may be used by the devisees for building and farming. The restraint upon alienation being void, the trustee took the estate simply for the use and benefit of the devisees, and the statute of uses immediately executed the use in them, except as to Mary Jane Cushing, who, being a married woman, took an equitable estate in fee simple during coverture. Upon the death of her husband the trust terminated, and the statute executed the use in her so as to give her the legal estate. Richardson v. Stodder, 100 Mass. 528. Moore v. Stinson, 144 Mass. 594, 595, 596. The appointment of a trustee does not appear to be necessary. It is clear that the rest and residue referred to in the concluding paragraph of the will means so much of the estate as would remain undisposed of under the previous conditions of the will if the daughter should recover and the estate should be conveyed to her and she should die intestate, or so much as would remain undisposed of if the daughter should continue of unsound mind till death. In either of these contingencies the real estate in controversy is disposed of by the will, and the latter contingency is the one that has happened. It is only when there is a fairly reasonable doubt as to the construction of the instrument on which the title of the plaintiff depends, that a court will be justified in refusing specific performance on account of the absence of parties who would have a right to dispute the defendant’s title. Cunningham v. Blake, 121 Mass. 333. Butts v. Andrews, 136 Mass. 221. Hunting v. Damon, 160 Mass. 441. Otherwise, the mere fact of possible litigation would be sufficient to bar a right to specific performance. We see no valid ground for questioning the plaintiffs’ title in this case. Decree for the plaintiffs.