Joslin v. Rhoades , 150 Mass. 301 ( 1889 )

Field, J.

The plaintiff is the administrator de bonis non, with the will annexed, of the estate of John Joslin, who died on November 23, 1881, leaving a will, which has been allowed by the Probate Court. The defendant is the guardian of Ellen M. Joslin, the widow of John Joslin, who was adjudged an insane person, and who died in January, 1389, leaving a will which has also been allowed by the Probate Court. Ellen M. J. Carter, who has been admitted as a claimant, pursuant to the St. of 1886, c. 281, is the executrix of the will of Ellen M. Joslin. The property in the hands of the guardian is five hundred and eleven dollars, which has been found due from him on "the settlement of his accounts as guardian. This sum appears to be a part of the proceeds of real estate sold by him as guardian, by license of the Probate Court, which real estate was devised io Ellen M. Joslin by the will of her husband. The principal question is whether Ellen M. Joslin took by this will a fee in the real estate of John Joslin, or only a life estate coupled with a power of selling and conveying the fee, to be executed by deed during her life. See Lyon v. Marsh, 116 Mass. 232; Smith v. Snow, 123 Mass. 323; Welsh v. Woodbury, 144 Mass. 542.

We think that the construction to be given to the first article of the will is that the testator intended to give absolutely to his wife all his real and personal estate remaining after the payment of his debts; that he did this upon condition that, if any of it remained in her possession at her death, it should be divided according to the provisions of the last clause of this article, and that he did not intend to give to his wife merely a life estate with a power of disposal by deed. Such a condition is inconsistent with the gift, and is void. Gifford v. Choate, 100 Mass. 343. Kelley v. Meins, 135 Mass. 231. Damrell v. Hartt, 137 Mass. 218. Todd v. Sawyer, 147 Mass. 570.

The real estate was therefore properly sold by the guardian, as the real estate of his ward, and the proceeds were the property of the ward, and, as personal property at the time of her death, should be paid to the executrix of her will. The judgment entered for the plaintiff should be reversed, and judgment entered for the claimant. So ordered.