¶1The construction we give to the will of Joseph Davis is that Emily Davis took all the estate in real property, which the testator could lawfully devise, for “ her sole use, benefit and disposal; ” and that the expression of a desire on the part of the testator that “ whatever may be left of my estate, if any, she may by will or otherwise give to those of my heirs that she may think best, she knowing my mind upon that subject,” is not to be considered as imperative. The words, “ I am willing to leave the matter entirely with her, feeling satisfied that she will do as I have requested her to in the matter,” taken in connection with the preceding provisions and the fact that the particular heirs are not designated by the testator, but are left to be determined as Emily Davis may think best, indicate that the testator intended to leave the disposition of the entire property devised to the devisee, unfettered by any legal obligation on her part to dispose of it to any particular persons ór in any particular way. This construction renders it unnecessary to determine whether, if the recommendation were intended to bind the devisee, it would not be repugnant to the devise or void for uncertainty. Gen. Sts. c. 92, § 5. Gleason v. Fayerweather, 4 Gray, 348. Bacon v. Woodward, 12 Gray, 376. Spooner v. Lovejoy, 108 Mass. 529. Gifford v. Choate, 100 Mass. 343. Hess v. Singler, 114 Mass. 56. Petition dismissed.
134 Mass. 588
Davis v. Mailey
Massachusetts Supreme Judicial Court
Decided April 6, 1883
Massachusetts Supreme Judicial Court · decided 1883-04-06
Petition for partition of certain land in Lynn. The case was submitted to the Superior Court, and, after judgment for the respondent, to this court on appeal, upon agreed facts, in substance as follows: The petitioners and the respondent are the heirs at law and next of kin of Joseph Davis, who died on June 3, 1871, seised of the premises described in the petition, and leaving a will, which was duly admitted to probate, and which provided as follows: “I give and devise to my…
Relies on Hess v. Singler · Gifford v. Choate · Spooner v. Lovejoy
Good law ✅— No negative treatment on recordhow we know
Decided 1883-04-06
How this case has been cited
Cited by 3 later decisions — most recently September 1905
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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