Stocker v. Foster

Hammond, J. The devise in the second clause of the will of Mary Foster did not give to William A. Foster, her husband, an estate in fee, but an estate for life coupled with a power to “ sell and dispose of ” any part of the estate during his lifetime “ whenever in his judgment he may deem it conducive to his comfort.” Kent v. Morrison, 153 Mass. 137. Collins v. Wickwire, 162 Mass. 143. We have first to deal with the question as to the nature of the power. It is contended by the demandant, on the one hand, that the power authorized Foster to sell, or otherwise dispose of, the estate only for a valuable consideration, and only when he deemed such sale or disposal to be conducive to his comfort by enabling him by means of such a consideration to supply his present or prospective needs. The tenants, on the other hand, contend that the power authorized Foster to sell and dispose of the property whenever such sale or disposition would have a tendency to promote his happiness or peace of mind, with or without regard to his present or prospective needs, and with or without a valuable consideration. The testatrix left no issue, and, since the will, executed but a few months before her death, makes no mention of issue, we conclude that there were none at that time. While making her will, she had in her mind her husband, her sisters Susan and Martha, her nieces Hattie and Nancy, and the demandant, as — 599 — the persons among whom her property should be distributed. She begins with the husband, giving hiiñ a life estate coupled with a power to dispose of the real estate during his lifetime. She then gives a life estate in the real estate, after the death of the husband, to her two sisters, and the survivor of them, with remainder in fee to the demandant. All these estates, including that devised to the husband, may be abridged or defeated by the execution of the power given to him to dispose of the land. He is empowered to sell and dispose of the whole, or any part of the real estate, “ whenever in his judgment he may deem it conducive to his comfort.” The testatrix is speaking of property,- and of property which she does not feel inclined to give in fee to her husband. It is her wish that, unless the sale and disposition of it shall in his judgment conduce to his comfort, it shall go to the other proposed objects of her bounty. She is speaking of that kind of comfort which arises from the sale and disposition of real estate. She is not speaking of heirlooms, nor does it appear that the real estate had any associations connected with it which would make its sale or disposition anything more than a mere matter of trade and the amount which could be obtained for it. The idea of sale, and of the disposition consequent thereupon, is the predominant idea in the mind of the testatrix. Under these circumstances we can have no doubt that by the words “sell and dispose of” is meant a disposition by sale and not by gift, and that the “comfort” to" which such a sale would “conduce ” is the physical comfort to be derived from the actual or potential application of the proceeds of such a disposition to the present or' prospective physical comfort or support of the husband. There may be, also, to a limited extent, a mental element in the comfort, consisting of that peace of mind which comes from a knowledge or belief that, by reason of a change in the property resulting from a disposition by sale, it will be rendered more easily available for the physical comfort or suppprt of the husband. See Forman v. Whitney, 2 Keyes, (N. Y.) 165. But, all along, the language used by the testatrix seems clearly to refer to such comfort as can be attained by the application of the proceeds of the property to the reasonable needs of the life of the donee of the power, and not to that peace of mind which arises from a knowledge that the property has been so disposed — 600 — of as to contribute to the enjoyment and support of others. The comfort experienced by the philanthropist in giving away his property, whether to relatives, friends or strangers, does not seem to us to be the kind of comfort which the testatrix had in mind when she was engaged in making this will. The view for which the tenant contends seems to us a forced and unnatural construction of the language of the will, and inconsistent with the general nature of the business in which the testatrix was engaged while making it. It follows that, in giving the third, fourth, fifth, seventh and eighth rulings requested by the demandant,' and in refusing to rule, as requested by the tenants, that the power given in the will was in effect an absolute and unlimited power to sell and dispose at the discretion of the donee of the power, the court made no error in law. The next question is whether the power was properly executed. The court found that the transaction between Foster and Mrs. Trow “ was a colorable transaction made without consideration, .and carried out for the purpose of transferring the property in question so that it might descend to his children regardless of the will,” and found for' the demandant. It is clear that, upon the construction we have given to the power, the transaction between Foster and Mrs. Trow was not a valid execution of the power if it was as found by the judge. The tenants insist however that the finding was not warranted by the evidence. It would serve, no useful purpose to recite the-evidence in detail. We have examined it and have no hesitation in saying that it amply justifies the finding, and that the second and sixth requests of the demandant were properly given. Although "the power was to be exercised at the judgment of the husband, still he was bound to act in good faith, Hoxie v. Finney, 147 Mass. 616. Lovett v. Farnham, 169 Mass. 1. The ruling, that the burden was upon the tenants to show a valid execution of the power, was. correct. In such a case, at common law, “ the demandant ; . . may give evidence of the seisin on which he has counted, within the time alleged in his count. Having done this, he must recover, unless this evidence is controlled by the evidence of the tenant; or unless the tenant can show that the entry, which is averred to be a disseisin, was — 601 — just,"or by judgment of law.” Parsons, C. J., in Wolcot v. Knight, 6 Mass. 418, 419. In Newhall v. Hopkins, 6 Mass. 350, 356, where the demandant had counted upon the seisin of his grandfather, it was stated by the same justice that “it is certainly true, . . . that, if an actual seisin of the ancestor was proved within the time alleged in the writ, the tenant is put to show a rightful entry ... or the verdict ought to be against him.” It is also competent for the tenant, under the general issue, to disprove the seisin of the demandant, as alleged in his writ, by showing that the demandant’s grantor had conveyed the title to another prior to his deed to the demandant. Stearns on Real Actions, (2d ed.) 198. Wolcot v. Knight, ubi supra. Stanley v. Perley, 5 Greenl. 369. Under our statutes, the demandant is no longer required to prove an actual entry under his title, but, if he proves that he is entitled to such an estate as he claims in the premises, and also that he has a right of entry therein at the time the action is commenced, that is-'deemed sufficient proof of seisin, and he recovers unless the tenant shows a better title in himself. Pub. Sts. c. 173, §§ 3, 4. Austin v. Cambridgeport Parish, 21 Pick. 215, 224. There was no question that the testatrix was seised in fee of the premises in dispute at the time of her decease. The demandant claimed as devisee under the will, the tenants under a deed from the donee claimed to have been given in the exercise of the power in the same. will. By the will the land went to the husband for life, then to the two sisters of the testatrix during their lives and the life of the survivor, with remainder in fee to the demandant. All these estates vested in the respective devisees at the time of the death of the testatrix, even although they were liable to be defeated by the valid exercise of the power given to the husband to sell in fee simple. Moore v. Weaver, 16 Gray, 305. Whipple v. Fairchild, 139 Mass. 262. Brewer v. Stevens, 13 Allen, 346. It is not a case where the vesting of the estate depends upon a condition precedent. The demandant, having shown the seisin of the testatrix at the time of her death', the probate of the will, and the death of the tenants for life, proved his title to the premises, and was entitled to recover, unless the tenants proved a better title in themselves. Newhall v. Hopkins, 6 Mass. 350, 356. — 602 — Pub. Sts. c. 173, § 4. This they undertook to do by proving the execution of the ppwer by the deed to Mrs. Trow. This deed had no tendency to show that the remainder devised to the demandant never was vested in him. It had no bearing whatever upon that question. It was material only on the issue-whether he had been divested of his estate. If he had, then the better title was in the tenants, but, unless he had, the tenants failed to show a better title in themselves; and hence, under the rules applicable to the pleadings and proof in real actions, as shown by the authorities and statutes above" cited upon this branch of the case, it seems plain that the burden was upon the tenants to show a valid execution of the power. The ruling, that it was competent for the demandant to prove the pecuniary condition and circumstances of Foster on the date of the deed to Mrs. Trow, was correct. Such evidence was material, as bearing upon the motive and purpose for which the deed was given by Foster, and upon the question whether he was acting in good faith. The exception to the admission of the entry in the book kept at the registry of deeds is not argued upon the brief of the tenants, and, considering its nature, we regard it as waived. There remains the exception to the admission of the evidence of one Taylor, who testified that, some years after the making of the deed to Mrs. Trow, and before this suit was brought, Foster said to the witness that he had got his property fixed so that his children should have it, and that he had “ deeded it to the old woman Trow because the children would not get it otherwise.” This statement, made in pais by the grantor in disparagement of his grant in the absence of the grantee, would not be admissible if the grantor had been alive at the time of the trial. Chase v. Horton, 143 Mass. 118. The- court however admitted the evidence under St. 1898, c. 535. This statute is short, and is as follows: “No declaration of a deceased person shall be excluded as evidence "on the ground of its being hearsay if it appears to the satisfaction of the judge to have been made in good faith before the beginning of the suit and upon the personal knowledge of the declarant.” It is to be assumed that it appeared to the satisfaction of the presiding justice that the conditions named in the statute existed. The question in dispute — 603 — was, whether the transaction between the declarant and Mrs. Trow was bona fide, or merely colorable; and, on that question, the intent of the declarant, the grantor, at the time of the making of the deed was a material fact. If he had been alive at the time of the trial, it would have been competent for him to testify as to his intent. The case seems to come strictly within the statute. It is'a declaration as to the existence of a material fact, namely, his intent in executing the deed, made by a deceased person in .good faith before the beginning of the suit, and upon his personal knowledge. We think the admission of the evidence justified by the statute. If it be said, that this interpretation of the statute renders admissible declarations not theretofore admissible, we can only say that such is its manifest intent. The statute is general in form, dealing only with a rule of evidence, and, so far as regards civil cases at least, it must be held, in accordance with the general rule in such matters, applicable to cases where the cause of action accrued before, as well as since, its passage. Commonwealth v. Homer, 153 Mass. 343. Brooks v. Holden, 175 Mass. 137. Exceptions overruled.