Harlow v. Bailey , 189 Mass. 208 ( 1905 )

Knowlton, C. J.

The first of these cases is a bill for instructions, on which the single justice reported to this court five questions in regard to the construction of the will of Sarah R. Harlow, deceased. The second is a petition to quiet or establish the title to land, brought by some of the heirs at law of Sarah R. Harlow against the other heirs and the residuary legatees of said deceased. The question of law raised on the second petition is the same as the first question reported by the single justice on the first petition.

1. The second clause of the will vested in Abby R. Fletcher a life estate with a power of sale in the real estate therein described, terminable on her marriage. In the first place, the words fixing the duration of the estate, “ so long as she shall remain unmarried,” do not indicate an intention to create an estate in fee. The authority to the devisee to sell at public or private sale, which immediately follows them, requires her “ to invest and reinvest safely the proceeds of such sale and to receive and appropriate to her own use the income of such reinvestments so long as she shall remain unmarried. ” This provision is inconsistent with the creation of an estate in fee, and shows that the estate was for life only. A power to sell may well be given to a devisee in connection with a devise of an estate for life. Woodbridge v. Jones, 188 Mass. 549. Collins v. Wickwire, 162 Mass. 143. Hatfield v. Sohier, 114 Mass. 48. The authority in the fourteenth clause to the trustees to sell this real estate, on the request of Abby R. Fletcher, so far as it indicates any purpose in regard to the nature of her estate, implies very plainly that she was not to have the absolute control of an owner in fee.

The provision in regard to her possible marriage has no tendency to enlarge the estate. Fuller v. Wilbur, 170 Mass. 506. Knight v. Mahoney, 152 Mass. 523. If we apply the rule of the early cases in regard to provisions in restraint of marriage, the object of the devise in this case plainly is to provide for the devisee while single, and not tp restrain marriage. The provision is therefore valid, even though the devisee might be induced to remain single to enjoy the benefits of the property. The devisee was a sister of the testatrix, more than seventy years of age. Mann v. Jackson, 84 Maine, 400. Cornell v. Lovett, 35 Penn. St. 100. Jones v. Jones, 1 Q. B. D. 279. Heath v. Lewis, 3 DeG., M. & G. 954. McKrow v. Painter, 89 N. C. 437. Jarm. Wills, (6th ed.) 886 and note, and cases cited.

2. The second clause of the codicil refers to the $2,000 of which the income is given to Abby R. Fletcher in the second clause of the will, and not to the $2,000 given to her absolutely. The words, “given for the benefit of my sister,” aptly describe a gift of a sum whose income is given during life, rather than an absolute gift of the same sum.

3. The eleventh clause of the will is inoperative. The beneficiary having died before the will was proved, only a month after the death of the testatrix, the trustees could not take the residue of the estate, and establish a trust, and invest this residue, for the purpose of paying to a beneficiary the income of $2,000 for one month. The cost of doing this would far exceed the income. Besides, the time for the termination of the trust arrived long before the trust could come into existence.

4. The residue of the estate is to be distributed among the persons named in the thirteenth clause of the will, as modified by the first and eleventh clauses of the codicil, as follows : one third to John B. Harlow, two ninths to Samuel A. Bacon, and the same share to George H. Harlow and Edward O. Harlow.

5. For reasons stated in our answer to the third question,, it is not necessary for Samuel A. Bacon and George H. Harlow to qualify as trustees under the second clause of the codicil. Besides, the gift was only to be used if necessary to provide for the support and maintenance of Abby R. Fletcher during her life. There is no necessity for the use of it. In the first case answers are to be decreed accordingly. In the second case the petition is dismissed.

iSo ordered.

Memorandum.

On the second day of October, 1905, the Honorable James Madison Barker died at Boston, where he was sitting as a single justice. He held the office of an Associate Justice of this Court from June 18, 1891, until the time of his death.