Bowen v. Dean , 110 Mass. 438 ( 1872 )

Gray, J.

If the devise by Thomas J. Burt of all his estate to his wife, Lydia Burt, “ to hold to her and her assigns forever,” could be construed, upon a view of the whole will, to give her an estate for life only, the devise over upon the contingency that she should “ die intestate and seised of any portion of said estate at the time of her decease,” gave her by necessary implication an absolute power of disposal, either by deed or will; and this power having been fully executed by her will, if not by the deed made by her, nothing remained upon which the devise over in the will of her husband could operate. It is therefore unnecessary to determine whether the devise over could have taken effect under any circumstances, or whether her deed was duly delivered. In any possible view of the case, the demandant has no title. Gifford v. Choate, 100 Mass. 343. Hale v. Marsh, Ib. 468. Solmes v. Godson, 8 De G., M. & G. 152, and cases there cited. Exceptions overruled.