Temple v. Nelson , 45 Mass. 584 ( 1842 )

Wilde, J.

This bill is founded on an alleged trust, created by the last will and testament of Jonas Temple deceased, which trust the plaintiff claims a right in equity to enforce against the defendants, the heirs at law of said Temple.

By one clause in the will, the testator gives to his son Jonas, all his land and buildings for life, but to be under the care and management of his son Isaac, and the net produce and profits of the same, or as much thereof as should be necessar), to be applied for the comfortable support and maintenance of his said son Jonas, and for his clothing, doctoring, nursing, and funeral expenses ; the deficiency to be paid by the said Isaac. Whether this clause in the will is to be so construed as to give the estate in trust to Isaac, for the use and benefit of Jonas, or as a devise to Jonas, with a power to Isaac to have the control and management of the estate devised, is a question of no importance ; because it is admitted in the bill, that the net profits of said estate have been applied to the support of the said Jonas by the plaintiff—the said Isaac having declined the trust. The trust therefore, in this respect, has been fully performed.

By another clause in the will, on which the plaintiff relies, the remainder of the said estate was given to the said Isaac, upon condition, however, that he should well and truly board and support the said Jonas, as before mentioned, and should do and perform for the said Jonas everything ordered to be done and performed for him in and by said will. By this devise to Isaac, it is contended, a charge on the remainder was created, in favor of Jonas, which could not be defeated by the devisee’s refusal to accept the devise ; and that the estate devised descended to the heirs, on such refusal, subject to the said charge and trust. But we think there is nothing in the language of the will, which can be so construed. The devise to Isaac is expressly on condition ; and if he had accepted the devise, he would have been bound to perform the condition ; and on his failure so to do, the land would have reverted and descended to the heirs of the testator. And in like manner, the remainder descended, on the said Isaac’s refusal to accept the devise. But there are no words in the will creating a charge upon the estate devised to Isaac. It was manifestly the intention of the testator to bind the devisee personally by the condition, on the supposition that he would accept the devise ; but no provision is made in case the devisee should refuse to accept the devise. Such a contingency does not appear to have been apprehended by the testator. It was his intention, undoubtedly, to provide for the maintenance of his son Jonas ; but the provision made is clearly expressed. And although that provision has failed, the court have no right to supply the defect in a way not within the contemplation of the testator.

But if the estate was devised to Isaac, on the trust alleged, we still should be of opinion that this bill could not be maintained. If the plaintiff has any remedy, he must first cause administration to be taken out on the estate of his brother Jonas ; for the plaintiff cannot, in his own right, enforce the performance of the trust. If the estate of Jonas is indebted to him, as alleged, his share of the estate devised to Isaac may be appropriated to the plaintiff’s claim, if there be no other creditors. But whether the plaintiff be entitled to any such remedy, or not, we are satisfied that this bill cannot be maintained.

Bill dismissed.