Barrett v. Marsh

Ames, J.

It is easy to see that the will of Charles Barrett, upon which the rights of these parties depend, was not the work of an accomplished conveyancer. To some portions of it, it is not easy to attach any definite meaning. But the intent of the testator, as gathered from the will taken as a whole, furnishes the true rule for its construction. Gifford v. Choate, 100 Mass. 343 . However awkwardly expressed, we think that intent is sufficiently certain to he carried into effect.

The first clause in the will contains a devise of “the house situated in Brighton” to Abby B. Barrett, and this devise is expressed in terms which in the construction of wills have always been considered sufficient to convey a title in fee. There can be no doubt that a devise or conveyance of a house passes as incidental to the grant the land belonging to it, used with it, and essential to its use and enjoyment. But if there can be any room to suppose that a narrower construction is to be applied, and that any portion of the house lot was not included in that clause, the second and third clauses of the will would operate to vest in Abby B. Barrett, in fee, one half of all real estate of the testator not included in the first clause, and the other half in the two daughters of the testator, also in fee. In either event, and upon either construction of these three clauses, the two daughters, under the will of the father and that of the mother, would be the owners in fee, as tenants in common, of the house in Brighton and the entire lot of land described in the bill, unless the subsequent clauses require a different construction

It is insisted on the part of the defendant that the devises contained in the previous clauses are qualified by the fourth and also *216 by the sixth. But we find nothing in the fourth in conflict with those that precede it, and, it may be added, very little that is really distinct and intelligible. With regard to the fifth and sixth clauses, it may be enough to say that it is not every expression of a wish in the interpretation of a will that is to be con s trued as a command, or as the creation of a trust. In order to have such an effect, it must appear that the words used were intended by the testator to be imperative. The previous clause gave the property absolutely and without restriction, and a trust is not lightly to be imposed, upon mere words of recommendation and confidence. Hess v. Singler, 114 Mass. 56 . 1 Perry on Trusts, § 115. 2 Story Eq. Jur. § 1070. The fifth clause merely. expresses a wish that the testator’s widow, at her death, shall make an equal division of her estate among the children, but does not purport to give them any legal or equitable estate. It looks to a disposition to be made by her at her death. Sears v. Cunningham, 122 Mass. 538 . A general intent, clearly expressed in a will, is not to be defeated by the addition of equivocal language, or expressions of doubtful or uncertain meaning. Williams v. Bradley, 3 Allen, 270 . To give to the sixth clause the effect contended for by the defendant would require that the terms in which the testator had expressed his primary purpose should be deprived of their legitimate and universally recognized import. Ladd v. Whitney, 117 Mass. 201 .

From this view of the case, it follows that there must be a Decree for the plaintiff.