Nudd v. Powers , 1884 Mass. LEXIS 80 ( 1884 )

Holmes, J.

The gifts to the plaintiff, in the second clause of her father’s will, of seven and five dollars a month out of the rents of certain houses, are not charged on the corpus of the fund. Beside the facts that only the income or rent purports to be charged, and that the payments are periodical, Scholefield v. Redfern, 2 Dr. & Sm. 173, which might not' be conclusive, the identical parcels of land are given to the defendants, Powers and Francis Austin respectively, for life, and, after the decease of the devisees and legatees named in the will, that is, of those defendants and the plaintiff, the rents, income, and profits of the same are given over “ forever,” with the further statement that “ said legacy conveys a fee simple in all my said real property ” to the last taker. This clearly shows that the land cannot be sold. Wilson v. Halliley, 1 Rus. & Myl. 590, 601. Foster v. Smith, 1 Phil. 629. Philipps v. Philipps, 8 Beav. 193. Farle v. Bellingham, 24 Beav. 445.

There are other indications that the testator expected and intended the land to be retained, such as the condition against selling intoxicating drinks upon the premises, the absence of any power to sell, and the nature of the final devise. The intention expressed is clear, and the question is purely one of intention. Baker v. Baker, 6 H. L. Cas. 616, 622, 627, 630.

It being clear that the fee is not charged, it would be inconvenient and unusual if the life estate should be, and such a construction would defeat the probable intention of the testator. It is true that the tenants for life take “ subject to the reservations ” to the plaintiff. But the “reservations ” are from income or rent, and a gift subject to a reservation from rent, otherwise shown not to charge the fee generally, is different from a gift subject to the payment of a lump sum. We think, therefore, that the plaintiff has no right to have the fee or any part of it sold to provide a fund for her, and, if it were within our power to give her the relief she asks, the mere fact that the defendants deny her charges — the income, so far as appears, being large enough to satisfy them when established — would not be a sufficient ground for granting it. See Graves v. Hicks, 11 Sim. 536, 551.

Again, the charges which the will purports to create are charges upon the rents alone, and not upon the persons of the devisees. The devise is not conditioned upon a payment by them generally, as in Amherst College v. Smith, 134 Mass. 543. See Turnough v. Stock, 11 Exch. 37; Doe v. Clayton, 8 East, 141, 144; Gardner v. Gardner, 3 Mason, 178, 212. The devisees, by accepting the testator’s gifts, accepted no liability beyond what the will expressed.

On the other hand, the rents and profits will be applicable during the life of the plaintiff to make up arrears. See Graves v. Hicks, 11 Sim. 536, 556 ; Booth v. Coulton, L. R. 5 Ch. 684; Taylor v. Taylor, L. R. 17 Eq. 324; In re Mason, 8 Ch. D. 411, 415.

The case is obscurely presented, and we cannot assume, on the answer and admission of the defendants Austin, that there has been an alienation. But as it seems probable, from the form of the agreed facts, that there may have been, and as we desire to dispose of all the questions of the case, we will add that, in that event, the purchaser will hold the land subject to the same charge. Amherst College v. Smith, 134 Mass. 546. Thayer v. Finnegan, 134 Mass. 62, 66. Aldrich v. Blake, 134 Mass. 582, 586.

The defence was put wholly on the ground of loches and want of jurisdiction in equity. The delay of the plaintiff in not proceeding is not a sufficient reason for rejecting the bills. It does not appear that the defendants have made any change in their position on the faith of the plaintiff’s quiescence, or, if they have, that they have any right to attribute it to that cause. In the absence of any such change, a delay of three years is not sufficient to deprive the plaintiff of a vested right of property.

As to jurisdiction, the bill seems to have been brought for a sale of the corpus on the principle of Cupit v. Jackson, 13 Price, 721, 733, M’Clel. 495, Hall v. Hurt, 2 Johns. & Hem. 76, and Horton v. Hall, L. R. 17 Eq. 437. It fails to obtain that form of relief, but we think that it may be sustained to declare and enforce a charge, the legal remedies for which, if any, are either derived from equity, and therefore do not take away its jurisdiction, or are inadequate. See Manly v. Hawkins, 1 Dr. & Wal. 363.

After proper inquiries, and such amendments as may be necessary, a decree may be framed, under the direction of a single judge, declaring the plaintiff’s rights, and ordering the defendant devisees, (and the defendant Agnes Austin, if a purchaser with notice,) to make payments overdue good, so far as they have received rents applicable to such payments, or are chargeable for such rents by reason of their occupation of the premises. If necessary, a receiver of the rents to be appointed. See Manly v. Hawkins, ubi supra; Pritchard v. Fleetwood, 1 Meriv. 54; Kelsey v. Kelsey, L. R. 17 Eq. 495.

Ordered accordingly.