Bamforth v. Bamforth , 123 Mass. 280 ( 1877 )

Gray, C. J.

The legal effect of the testator’s dispositions of his real estate is as follows : He first gives his parents an estate for life. He also gives them “ so much of the estate itself as may be necessary for their comfortable support so long as either of them shall live,” thereby giving them a power to dispose of so much of the fee as may be necessary for that purpose; and, whether their determination upon such question of necessity is or is not conclusive, no trust is created in them or in the executor. Minot v. Prescott, 14 Mass. 496. Stevens v. Winship, 1 Pick. 318. Larned v. Bridge, 17 Pick. 339. Harris v. Knapp, 21 Pick. 412. Dodge v. Moore, 100 Mass. 335. Whitcomb v. Taylor, 122 Mass. 243. The devise over, “ at the death of my parents,” to a sister and a friend, is made contingent bv the words “ should either of them be living; ” and the residuary devise to other persons, “ after the above bequests have been taken out of the estate,” is necessarily likewise contingent. Holm v. Low, 4 Met. 190, 201. Thomson v. Ludington, 104 Mass. 193.

As the will created no trust estate, expressly or by implication, the Probate Court had no jurisdiction to order a sale under the St. of 1869, c. 331, whether the remainder was vested or contingent, and its opinion upon that question was extrajudicial and of no binding effect.

The estate being, in our opinion, incumbered by a contingent remainder, and the justice of this court, before whom the hearing was had, having found it to be necessary and expedient that a sale and conveyance should be made, it is so ordered. St, 1868, c. 287. Symmes v. Moulton, 120 Mass. 343.

Petition granted.