Wainwright v. Sawyer , 150 Mass. 168 ( 1889 )

C. Allen, J.

According to numerous recent decisions, each child of Mr. Sawyer took an interest in his estate, which was alienable before the youngest child became of age. It was not a mere possibility, but a fixed right, to take as purchaser under the devise, which could be defeated only by his death before the time for distribution, or by Mrs. Sawyer’s disposing of the property. Assuming that she had an implied power to sell and use the proceeds, this did not defeat the alienability of the son’s interest. The alienation, of course, would be subject to all contingencies. See Welsh v. Woodbury, 144 Mass. 542, 545, and cases cited; Dodd v. Winship, 144 Mass. 461; Whipple v. Fairchild, 139 Mass. 262; Putnam v. Story, 132 Mass. 205, and cases cited.

Looking at the language of the deed in the light of the circumstances, it appears to have been the son’s intention to convey his whole interest in his father’s estate, both real and personal. The want of a detailed description of the real estate is but a slight circumstance to the contrary. It might be uncertain in his mind what particular pieces of real estate would be in his mother’s possession when the youngest child should become of age. The instrument of conveyance was a deed under seal. He appears by the date. to have taken pains to acknowledge it some time after its execution. It ran to the grantee, her heirs, executors, administrators, and assigns. The habendum was to her and their sole use and behoof forever. The words of description of the subject of the grant are as broad as the words of the devise. He sells and assigns all his right, title, interest, and share in and to the estate of his father, “ and in any property of every description whatever there has been, is now, or may hereafter be, in the possession of the said Sarah J. Sawyer as trustee,” etc. We think his intention to transfer his whole interest is plainly to be inferred, and the words of the deed are sufficient in form. There are no special and exclusive words of grant which must necessarily be used. The words “ sell and assign ” are sufficient. Russell v. Coffin, 8 Pick. 143, 151, 152. Bridge v. Wellington, 1 Mass. 219. Jamaica Pond Aqueduct v. Chandler, 9 Allen, 159, 167. 3 Washb. Real Prop. (5th ed.) 330. 4 Kent Com. (13th ed.) 461. And it was not necessary to specify particular pieces of real estate. Litchfield v. Cudworth, 15 Pick. 23. Shep. Touch. 250.

Exceptions overruled.