Powers v. Rafferty

Hammond, J. This is a petition for partition of the real estate specifically named in the second and third clauses of the will of Sarah Banfield, who, being seised of the same, died in 1893, leaving as her only heirs and next of kin four daughters, Adelaide, Sarah, Delia and Mary, and one son, Thomas. Adelaide died intestate in 1898, leaving a husband, Nicholas P. Powers, who is one of the petitioners, and as her only heirs [87] and next of kin two children, Gertrude and John, minors, who, through a guardian, are the other petitioners. The case calls for the construction of the third clause of the will, which reads as follows: “ I give, devise and bequeath to my said daughter Mary E. the other undivided half of my said real estate, to have and to hold to her and her heirs and assigns forever, but in trust nevertheless for the use and benefit of my daughter Adelaide G. Powers of said Cambridge; it being my desire that my said daughter Adelaide should have the full benefit of said undivided half, but to have no power to dispose of the same by deed or otherwise, and I request that no surety or sureties be required from my said daughter Mary E. in the execution of said trust.” The petitioners contend that under this clause the undivided half named therein was devised to Mary in trust" for the benefit of Adelaide, and that upon the death of the latter it descended to her children in equal shares, subject to the estate by the curtesy in the husband, free and discharged of the trust. The respondent Mary, however, contends that this undivided half was devised to her in trust to hold for the benefit of Adelaide only during her life, and that upon her death the trust ceased and the remainder fell into the estate of the testatrix and became a part of the residue bequeathed in the eighth clause of the will to the said Mary and Adelaide in equal shares, so that the petitioners, who upon this view take only under this last clause, are seised of only one half of this undivided half or only one quarter of the land, while Mary, receiving one half under the second clause and one quarter under the eighth clause, is seised in fee of three undivided fourths of the land. The other respondents, being the remaining children of the testatrix, contend that under the third clause Mary took an estate for the life of Adelaide, that the remainder was not disposed of by the will, and therefore vested in the children of the testatrix in equal shares. The testatrix in the first clause appoints her daughter Mary sole executrix, requesting that she may be exempt from giving bonds, thereby indicating her confidence in her. In the second clause she bequeaths one half of this real estate to Mary in fee, [88] using the technical words apt to describe such an estate. Then comes the clause which is to be construed. The devise to Mary is in words apt to create a fee, but since it is an estate in trust the legal estate will be commensurate only with the trust. The trust is “ for the use and benefit ” of Adelaide. Then follows the expression of the desire that Adelaide “ should have the full benefit of ” this half, but should “ have no power to dispose of the same by deed or otherwise.” Then follow clauses making certain specific bequests to the three remaining children, and to the grandchild Gertrude, who is one of the petitioners; and the will ends with a general residuary clause in favor of Mary and Adelaide, in which they take in equal shares. In view of the intention shown in other parts of the will to treat Mary and Adelaide equally and upon a plane different from that of the other children, of the express language of the third clause that Adelaide should have the full benefit of this half, limited only as to the power of disposal of it during her life, and of the absence of any special devise over of this half after her death, we are of opinion that it was the intention of the testatrix that'this half should go to the use and benefit of Adelaide and her heirs substantially as the other half went to Mary and her heirs; and that the only reason for putting it in trust, instead of giving the legal estate to Adelaide, was that Adelaide might not have the power to convey the legal estate in her lifetime; and that therefore Adelaide took an equitable fee. See Fay v. Phipps, 10 Met. 341; Chauncey v. Francis, 181 Mass. 513 ; Chauncey v. Salisbury, 181 Mass. 516. We are also of opinion that the trust continued only during the life of Adelaide, and that at its determination upon her death the equitable use in the remainder became executed in her heirs by the statute of uses, so that they became seised of the legal estate as if she had died seised in fee simple. See Richardson v. Stodder, 100 Mass. 528, and cases there cited; Moore v. Stinson, 144 Mass. 594; Cushing v. Spalding, 164 Mass. 287. The petitioners being thus seised, the petition can be maintained, and the interlocutory judgment that partition be made should be entered. So ordered.