Dunn v. Dobson

Loring, J. It is the law in Massachusetts, as well as in other jurisdictions where the English common law obtains, that an attempt to impose restraints or limitations on the owner of a legal estate in real property (using the term “ estate ” in its technical sense) is void; and this is so whether there is a gift of the estate coupled with the imposition of repugnant restraints or limitations or whether in making the gift all the rights appertaining to the estate are given with the exception of one or more specified which are withheld. The rights of the owner of a specified estate in land are defined by the law, and all attempts by a grantor in making a gift to give the donee all the rights of the owner of a specified estate but one or more would be futile and void. In most jurisdictions equity follows the law in this as well as in other connections. See Gray, Restraints on Alienation, (2d [146] ed.) §§ 105-123. But in Massachusetts it was decided in Broadway National Bank v. Adams, 133 Mass. 170, and in Claflin v. Claflin, 149 Mass. 19, that in creating an equitable estate a donor may carve out and create such equitable rights in property as his fancy may dictate and his imagination devise, without regard to the rights appertaining to the several estates known to the law. This conclusion was stated to rest on the doctrine that in such a case the donor “ does not give them an absolute estate and then impose restrictions and conditions repugnant to the estate, but gives an ownership qualified by the directions ” adopted by the donor; see Barker, J., in Young v. Snow, 167 Mass. 287, 288, 289. The cases of Broadway National Bank v. Adams and Claflin v. Claflin, ubi supra, were decided in 1882 and 1889, respectively, and the broad doctrine there laid down has been repeatedly affirmed since then. Wemyss v. White, 159 Mass. 484. Young v. Snow, 167 Mass. 287. Brown v. Wright, 168 Mass. 506. Danahy v. Noonan, 176 Mass. 467. Hoffman v. New England Trust Co. 187 Mass. 205. This must be taken to be a settled rule of property not now to be questioned. The reason why this court held in Choate v. Sears, 146 Mass. 395, that the trust there in question should be brought to an end was that in the event that happened the will did not disclose an intention on the part of the testator that it should continue. There the testator bequeathed and devised the residue of his estate in trust to pay to the plaintiff $4,000 a year when he arrived at the age of twenty-one years; $6,000 at the age of twenty-five years; and $10,000 at the age of thirty years; and made no disposition of the remainder of the trust fund. In the case at bar the testator has directed the income of the trust estate created in the residuary clause of his will to be paid to and distributed among his “ children and the issue of any deceased child every year during the life of the longest liver of said children,” the share of the income of any child dying without issue going to the survivors of the class; and “ On the decease of my said wife and all my children, I direct the said Trustees to pay over and convey the trust property in their hands to the heirs at law of my deceased children, said heirs taking in right of representation.” [147] It was the intention of the testator that there should be one trust fund until the death “ of the longest liver of ” his “ children,” and that no partition should take place until that time arrived. Under the rule which obtains here this intention of this testator will be carried into effect, certainly where others interested in the matters here in question (namely, the partition of the trust fund) do not consent to its termination. We add to prevent misconception that we see no reason for holding that the plaintiff’s interest in remainder is not a vested interest. Decree affirmed.