Hubbard v. Rawson , 70 Mass. 242 ( 1855 )

Dewey, J.

The decision of this case depends upon the construction to be given to the will of Daniel Rawson, and particularly to that clause containing a devise for the benefit of his daughter Lucy Morris. If the premises in controversy were so held and possessed by Mrs. Morris that, upon her death, they descended by force of the Rev. Sts. c. 61, § 1, as her intestate estate, to her two children, then, upon the decease of her son Augustus Morris, his share passed to his sister, who survived him. On the other hand, if the two children of Mrs. Morris took their estate directly under the devise of Daniel Rawson, and are- to be deemed to hold the same by force of that title, and not as heirs of an intestate estate of their mother, then, upon the death of Augustus Morris, without issue, his interest passed to his father, Godfrey Morris, under the statute of descents.

The plaintiff insists that, under the clause in the will that has been referred to, Mrs. Morris took an equitable fee simple, which upon her death descended to her children as heirs of her intestate estate. To establish this position, he relies upon the terms of the devise, as showing the intention of the testator to confer upon Mrs. Morris an absolute and unlimited control over the estate, through a trustee appointed to carry out this object.

No doubt the testator had the general purpose to give the property in trust in the best way to secure the same wholly for the use of his daughter. But embarrassment arose from her being a married woman, and from the wish of the testator to secure it to her sole use, and to prevent her husband’s acquiring-any right to it by the devise to her. To effect these objects, the testator resorted to the mode of devising it to a trustee, giving the use of the estate to Mrs. Morris during her life, and the power to direct a sale thereof by the trustee, or by her will or other writing to declare in whom the estate should vest on her death; but with the further provision, that, in case no such power had been exercised, or any disposition made of the estate during the life of Mrs. Morris, by her, then the trustee should convey and deliver over the trust fund to her children, to be equally divided between them.

Mi’s. Morris died without having exercised the powers thus conferred upon her, leaving two children ; and the question arises upon the gift over, and whether any estate passed thereby to the children, so that they may be said to hold under the devise of their grandfather, Daniel Rawson, as purchasers. Was the estate of Mrs. Morris an equitable fee simple, absolute in its character ?

It is said that the estate was, in terms, given in trust for the use of Lucy Morris, her heirs and assigns, thus indicating an absolute fee simple. This is so; but the entire provisions, and all the limitations found in this clause of the will, qualifying the first sentence, are to have their proper effect in giving a construction to this devise. Although thus given for the use of Lucy Morris, her heirs and assigns, yet, in a trust estate, where the conveyance of the legal estate is to a trustee for certain declared trusts, upon certain limitations and conditions therein stated, and especially if there be a gift over to other persons upon the happening of certain events, a fee simple absolute does not pass to the first taker. The policy of our law obviously is to carry out the intention of the testator so far as it can be found effectively declared in the will.

In the present case, it is quite obvious that the testator did not intend that the legal estate should ever vest in Mrs. Morris during her coverture. It was in no event to be conveyed to her, except upon her surviving her husband. By will, or other writing, she might appoint the person to whom the estate was to be conveyed ; but the testator proceeds to make a disposition of the farm upon the contingency of Mrs. Morris not making any will disposing of the same, and assumes to direct the same, in such an event, to be conveyed to the children of Mrs. Morris, upon her decease before her husband. This provision of the will seems to negative the idea that the estate was wholly in Mrs. Morris at the time of her decease, which is the proposition to be maintained by the plaintiff. If this devise over to the chil dren is of any validity, then by force thereof the children of Mrs. Morris took the estate as purchasers under the will of their grandfather, Daniel Rawson, and not as heirs at law of their mother, and under the statute of distributions of intestate estates.

In the view we take of the case, this part of the devise cannot be treated as a nullity. The cases, cited by the plaintiff, of Ide v. Ide, 5 Mass. 504, and Newhall v. Wheeler, 7 Mass. 189, are not parallel cases, and the same reasons do not exist here, as existed in those cases, for holding the conveyance to be that of an absolute title.

Here was a gift over of the residue of the testator’s estate that might exist upon the failure of Mrs. Morris to do certain acts, and in the event of her decease before her husband. The devise was to the children of Mrs. Morris, the word “ children ” being used as descriptio personarum, to identify those who were to take the estate devised. This devise over is inconsistent with the idea that the testator intended to devise an absolute estate to Mrs. Morris, so that, in the event of her death, it would descend to her children or heirs at law as her intestate estate. The testator having, by the terms of his devise, made the children of Mrs. Morris his devisees, to take the estate upon a certain contingency, and that contingency having occurred, they must be held to have taken the estate as purchasers under the will.

The result to which we come is, that Mrs. Morris had only an equitable fee simple contingent, liable to be defeated upon her dying before her husband, in case the estate was not conveyed by her order, and she had made no disposition of the property by will or other writing ; that it was competent for the testator to make the devise over; and that, the estate given to Mrs. Morris having terminated by her death, her children held the land as purchasers by force and effect of the will of Daniel Rawson, and not as an estate acquired by inheritance from their mother. Such being the case, upon the death of Augustus Morris, his father was, by our statute of distributions, entitled to hold the estate of Augustus, as his heir at law. The result is that Godfrey Moms is jointly interested in the estate as tenant in common of one undivided half thereof; and the defendant, claiming under his title, has maintained his defence.

Judgment for the defendant.