Hull v. Culver

McCurdy, J.* It is accepted by both parties as an undoubted principle that when an estate for life is' given with power in the devisee to sell and dispose of it at his own discretion and for his own use, he takes a fee. The important [405] question in this case is whether the power of sale conferred by the will is absolute or contingent. This depends upon the construction to be given to the word “ want,” in connexion with the other language of the will and the facts found. The term in itself is ambiguous, being very commonly used to mean “ wish ” or “ desire,” and as frequently in the sense of “ need ” or “ require.’’ The great object is of course to ascertain the intention of the devisor. If she had designed to give her husband the entire estate, it would have been very easy and very natural for her to have said it in short and direct terms, or to have placed the disposal of it at his discretion, without imposing a condition. But she gives him the disposal only “ if he should want for his support to sell any part or the whole of it for his maintenance.” This language very clearly implies a limitation or restriction of the power to a case of necessity. The sale is to be proportioned to the extent of the necessity. The defendant however urges, certainly not without plausibility, that the husband was to be the sole judge of his necessity. But as we understand it, the contingency was to be his actual need and not his expectation or opinion of it. The authorities on this point seem to be conclusive. 1 Hilliard on Real Property, ch. 57, sec. 9; Minot v. Prescott, 14 Mass., 496 ; Stevens v. Winship, 1 Pick., 318 ; Larned v. Bridge, 17 id., 339. The next question is, whether there was in fact a necessity for the sale. Upon this part of the case the finding of the court is very explicit. At the execution of the first deed it is found that there was not any necessity for the conveyance of the land for his maintenance or support, as he had property in his own right sufficient for that purpose. At the giving of the second deed it is found that he had property in his own right more than sufficient to satisfy his indebtedness, and to support him in his accustomed mode of living up to the time of his decease, which occurred about four months afterwards, although it would probably have been wanted had he survived a year more. Even if it were not required, in order to justify a sale, to show that the devisee was in a condition of im [406] mediate want, it should at least appear that there was so much danger of it, that the raising of money had become reasonably necessary. In our view of the case it is not important that w¿ should decide as to the competency of Culver to make the second conveyance, but it may not be improper to say that our impression is against it. Judgment should be rendered for the plaintiff. In this opinion the other judges concurred. Footnotes [*] This case having been submitted on briefs, Judge McCurdy took part in the decision though not present at the term.