American Baptist Publication Society v. Lufkin , 197 Mass. 221 ( 1908 )

Braley, J.

After giving by the first clause a small pecuniary legacy, which subsequently lapsed by the death of the legatee before the testator, in the second clause of his will Samuel Cheever devised and bequeathed to his wife, “ all the rest and residue of my estate both real and personal that I may have at the time of my decease to use and dispose of as she may think best for her interest and comfort. And at her decease my will is that what may remain (if any) of my estate thus given to my said wife, shall be equally divided between the Massachusetts Baptist Bible Society — The Massachusetts Baptist Home Missionary Society, the Massachusetts Baptist Foreign Missionary Society, and the Massachusetts Baptist State Convention to assist destitute churches.” By this language she took an estate for life, with an unlimited power of disposal in fee, if in her judgment such disposition became necessary “for her interest and comfort.” But until her death it could not be ascertained whether-- the remainder which vested in the societies named, to whose estate the petitioners have succeeded, would be divested by an exercise of the power. Chace v. Ladd, 153 Mass. 126. Dana v. Dana, 185 Mass. 156. Ball v. Holland, 189 Mass. 369. Raymond v. Commonwealth, 192 Mass. 486. The report is somewhat barren in details, but it is to be inferred that the real property was not alienated, unless by her will she devised the fee. While the power is sufficiently broad to permit this, if her welfare or comfortable support required it, the sole fact that she died testate is not sufficient. It does not appear either from the language of her will, or from any extrinsic facts, that in any of its provisions the instrument was intended to operate as a legitimate execution of the power. Raymond v. Commonwealth, ubi supra. Stone v. Forbes, 189 Mass. 163. The will consequently devised only such property as the testatrix held in her own right, and at her death the petitioners, whose title had not been divested, were entitled to possession. The rulings requested by the respondents, therefore, were rightly refused, and those given correctly stated the law.

By the terms of the report a final decree is to be entered in favor of the petitioners, the terms of which are to be settled in the Land Court.

So ordered.