Webster v. Webster , 105 Mass. 538 ( 1870 )

GRAY, J.

The general rule is well settled, that a sale of real estate by a testator after maMng his will operates as a revocation to the extent of the estate sold only. Hawes v. Humphrey, 9 Pick. 350. Clark v. Packard, 9 Gray, 417. Carter v. Thomas, 4 Greenl. 341.

In the present case, it is manifest from the will itself that the testator intended that such share as Everett and Ms cMldren should take should be put in trust, to be applied, at the discretion of the trustee, for the benefit of Everett during his life, and after Ms death to be transferred to his cMldren outright on their coming of age. This intent would be defeated by declaring him wholly intestate.

If we could indulge in conjectures, we might infer that, in the period of ten years that intervened between the making of the will and Ms death, he deliberately concluded that, as his other sons had no children, the provision made for the children of Everett should be increased.

But however that may be, we are all of opinion that there ia nothing in the acts of the testator since the execution of the will, from which we can, consistently with the rules of law, presume an intention to revoke his will in any respect in which it purports by its terms to. dispose of his property in the condition in which he left it at his death.

This case differs from those in which the subsequent sale by the testator has been of substantially his whole estate, making it impossible to give effect to the dispositions of his will; as in Cooper’s estate, 4 Penn. State, 88 ; or in which material parts of the general scheme of the testator have been held illegal and void, and therefore the whole scheme has been declared invalid; as in Harris v. Clark, 3 Selden, 242, and Sears v. Putnam, 102 Mass. 5.

It is admitted by the parties claiming under the will, that the residuary legatees are not entitled to contribution from the specific devisees for that part of the estate which has been taken by the widow, waiving the provisions of the will, and claiming her legal rights. See Blaney v. Blaney, 1 Cush. 107.

The result is, that so much of the proceeds of the real estate sold by the testator since the making of the will, as is not needed to satisfy the rights of the widow, is to be held by the plaintiffs in trust for Everett and his children, according to the directions of the will. Decree accordingly.