Chase v. Ladd

¶1The principal differences between this case and Joslin v. Rhoades, 150 Mass. 301, are that the devise in Joslinv. Rhoadesis to the wife and “ her heirs and assigns forever,” and in the present case it is to the wife, “ to her use and behoof forever,” and that in Joslinv. Rhoadesthere is no express or implied restriction upon the right or power of the devisee to dispose of the *128estate unless it is to be inferred from the “ condition that, if any portion of my said estate should remain in the possession of my said wife at the time of her decease, such remainder shall be divided ” as expressed in the will, while in the present case it is distinctly implied that the wife shall have the power of expending the property only “ for her support and maintenance during her lifetime,” and it is provided that “ so much of said estate as shall remain unexpended at the time of her decease shall be disposed ” of as expressed in the will. We are inclined to the opinion, that these differences are significant, and that the most reasonable construction of the will is that the testator intended that the wife should have the use of the property for her support and maintenance, with the power of expending it,' that is, of selling and conveying it, and using the proceeds only so far as was necessary for her reasonable support and maintenance during her life, but with no other power of disposing of the property, or of any part of it. The words of the first part of the clause do not so plainly convey the property absolutely, or in fee simple, that the subsequent proviso must necessarily be considered as inconsistent with them, and the meaning of the proviso is clear. There is no doubt of the intention of the testator to dispose of what remains at the death of his wife unexpended for her support and maintenance, and we see no insuperable difficulties in carrying this intention into effect. None of our decisions in which it has been held that the property was given absolutely, and that the remaining provisions were inconsistent with such a gift and were void, requires us to reach that conclusion from the particular words of this will, although there are cases closely resembling the present, which certainly is very near the line which separates the decisions.*Bamforth v. Bamforth, 123 Mass. 280. Smith v. Snow, 123 Mass. 323. Schmaunz v. Goss, 132 Mass. 141. Kelley v. Meins, 135 Mass. 231. Damrell v. Hartt, 137 Mass, 218. Welsh v. Woodbury, 144 Mass. 542. Joslin v. Rhoades, 150 Mass. 301.

¶2The provisions in this clause of the will concerning the monuments are not, we think, very material. Undoubtedly the wife was given power to sell for this purpose so much of the property as was necessary. Demurrer overruled.