Veeder v. Meader , 157 Mass. 413 ( 1892 )

Field, C. J.

The question in this case is, whether Phebe D. Austin, widow of Edward C. Austin, took a fee simple in his dwelling-house and adjoining land under the first article of his will, or only an estate for her life. It is apparent that the person who wrote the will knew how to use apt words for the creation of a life estate, because the fifth clause begins as follows : “ The residue of my estate, after the payment of these legacies and my just debts, I give and bequeath to my said wife, to her sole use and benefit during her life,” etc. We think it equally plain that the testator did not have in mind, as included in this residue, an estate in remainder in his dwelling-house and adjoining land, after the death of his wife, because his wife could not possess and enjoy such an estate in remainder during her life. The words of the first clause are sufficient to give the wife an estate in fee, when it does not appear from the rest of the will that the testator intended to devise to other persons what remained of this estate on her decease. This distinguishes the present case from Kent v. Morrison, 153 Mass. 137.

Considering all the provisions of the will, we think that it appears that the testator intended to devise to his wife an estate in fee in the real property described in the first article of the will. See Wait v. Belding, 24 Pick. 129; Gleason v. Fayerweather, 4 Gray, 348; Fearing v. Swift, 97 Mass. 413, 415; Cummings v. Shaw, 108 Mass. 159; Spooner v. Lovejoy, 108 Mass. 529, 532; Chase v. Ladd, 153 Mass. 126; Foster v. Smith, 156 Mass. 379; Gen. Sts. c. 92, § 5. Judgment affirmed.