Melcher v. Chase , 105 Mass. 125 ( 1870 )

Gray, J.

The court is of opinion that the terms of the devise to John Chase, Jr., as applied to the facts reported by the master, manifest the testator’s intention to include therein not merely his mansion-house lot in the strictest sense, with the small amount of mowing, tillage and pasture land connected with it, but also the two cottage lots adjoining, originally not divided from it by fence or otherwise, one of which was usually occupied by his manservant, and the other occupied to the time of his death by his sister and her husband, for whom the testator had built the house thereon, and with whose support he expressly charged this devise ; and also the eight acres of pasture, mowing and tillage land, lying within a short distance upon the highway, and the farming of which and of the similar lands nearer his dwelling-house was carried on together and with the same tools, and the agricultural products of which, without distinction, were taken to his house lot and there consumed by his family and live stock.

At the date of the will, the testator owned several other parcels of real estate. The residuary devise, under which the other defendants claim, was in terms limited to “ other real estate not heretofore named,” and could not be enlarged, at the expense of a previous specific devise, by the sale of other lands between the mating of the will and the death of the testator; and the affirmation of the will by the codicil did not change the meaning or limit the operation of that specific devise.

As all the lands in question vvere included in. the devise to John Chase, Jr., the executors have no authority to sell any part of them for the benefit of the other heirs of the testator under the power contained in the residuary clause.

Decree in favor of John Chase, Jr.