that it be allowed to appear as tenant and defend, on the ground that it was in possession of the parcels referred to, and this motion was allowed, with the consent of the demandants. Judgment for tenants, and demandants excepted. Exceptions overruled. The instructions referred to were as follows:

tate, and if at any time she shall think it necessary for the comfortable maintenance or support of herself, or of my brother Samuel Sparhawk, 2d."

William Sparhawk died October 23, 1885. In 1893 the widow conveyed a small triangular portion of the demanded premises for the sum of $30, which was full value therefor. (1) That the will of William Sparhawk, from In 1904 she conveyed the remainder of the whom all parties in interest claim to derive their demanded premises for $1,050, a full and adetitle, gave Harriet E. Sparhawk a life estate quate price. Among the findings of fact with a limited power to sell and convey, depend- made by the land court are the following: ent upon the actual need of herself or Samuel Sparhawk for support or maintenance. "The demanded premises consisted of a house (2) That the burden is on the tenants to show lot in Marblehead with an old house thereon that there was such actual need of support and used as a tenement, very much out of repair and maintenance on the part of Harriet E. Spar-standing next to the factory of the defendant hawk or Samuel Sparhawk.

(3) That the power to sell, which was given to Harriet E. Sparhawk by the will of William Sparhawk, did not authorize or empower her to mortgage any part of the estate.

*

*

shoe company in a very poor neighborhood for tenants. The widow lived in her husband's former homestead in a very frugal manner, finding great difficulty in paying the premiums for the fire insurance policies on the property of the es(4) The sale of land by Harriet E. Sparhawk tate, unable to make proper repairs on the deto John M. Ward, and the receipt by her of a manded premises, and complaining of the sums mortgage from said Ward, (Exhibits I and J. of money called for by her brother-in-law, the gave Harriet E. Sparhawk a fund or personal said Samuel Sparhawk. for his support up to the property which, together with the cash received time of his death in 1906. She stated by her from said Ward, and the other income, to the agent who arranged the sale that the deshe had to exhaust for the support and mainte-manded premises were a drain upon her, that nance of herself and Samuel Sparhawk before she was unable to collect any rents, which I she could make a valid conveyance of any por- find was a fact, and that it was, therefore, nection of the estate so as to cut off the rights of essary for her to sell. I find that at the remaindermen therein. the time of the sale it was necessary for her to use some portion of the principal of the estate, and that if she had the power to exercise her discretion then she exercised it wisely and to the advantage of the demandants in selling the demanded premises, which were unproductive, a source of expense, and in need of repairs which she could not make, and in keeping the incomeproducing mortgage; and I find that she acted in good faith."

(6) The record of the deed from Harriet E. Sparhawk to John M. Ward, the record of the mortgage back from John M. Ward to Harriet E. Sparhawk, and the records of all proceedings pertaining to the estate of William Sparhawk in the probate court for the county of Essex, were notice to subsequent purchasers that the condition precedent to a valid exercise of the power by Harriet E. Sparhawk-viz. need of funds for support and maintenance of herself and Samuel Sparhawk,-did not exist.

(7) The failure on the part of Harriet E. Sparhawk to set out in her deed to James N. Parker and others the power under, or the capacity in which she purported to convey, or otherwise to inform them thereof in the said deed, was of itself sufficient to render the said conveyance to James N. Parker and others void and of no effect.

*

*

[1] It is plain from the language of the second clause of the will that his principal purpose was to furnish comfortable support and maintenance for his widow; and, subject to her discretion, to provide for the supIn addition to port of his brother Samuel. the income of his estate, he gave her unlimited power to sell all or any part of it-if we John E. Galvin, of Boston, for demandants. take the language of the last sentence literalCurrier, Young & Pillsbury and P. G. Carle-ly. Even eliminating the word "and," and ton, all of Boston, for tenant Parker Shoe Co. thereby expressing more clearly what pre

DE COURCY, J. The tenants claim title to the land in controversy by mesne conveyances from Harriet E. Sparhawk, widow of William Sparhawk. The controlling question in the case is whether there was a valid execution of the power given by his will in the following paragraph:

sumably was his real intention, the power was broad enough to authorize such sale as she, acting in good faith, should deem necessary to provide comfortably for herself and Samuel. Hoxie v. Finney, 147 Mass. 616, 18 N. E. 593; Dana v. Dana, 185 Mass. 156, 70 N. E. 49; Griffin v. Kitchen, 114 N. E. 431 [2-4] The foregoing disposes of the de"Second, I give, devise and bequeath all my mandants' first and second requests for rul estate, Real Personal and mixed of which I shall ings; her power to sell was not restricted die seized and possessed or to which I shall be to her "actual needs." The third was not apentitled at the time of my decease to my beloved wife Harriet E Sparhawk, to have and to hold plicable to the facts, as Mrs. Sparhawk did the same to her during her natural life, subject not mortgage the land in controversy, nor any only to the condition, that my brother Samuel other so far as appears. The fourth and now a resident of Cheyenne, Wyoming territory, shall during his life receive a comfortable maintenance and support, both in sickness and health, out of my said estate, and I hereby, give to my said wife, H. E. Sparhawk, free power and authority, to use her own discretion as regard the amt necessary for my brother's comfort, I also give my wife free power, and authority to sell and dispose of all and any part of my said es

sixth were rightly refused. In the exercise of the wide discretion to sell all and any part of the estate, real and personal, on the find ings she wisely sold the nonproductive property in 1893, and retained the income-producing mortgage. Indeed it was to the advantage of the demandants that she did not spend the

tion of testatrix can be transposed and read The subsequent clause declaring the intenwith the clause devising the property under the settled rule of construction that, to ascertain the intention, words, sentences, and clauses in the will may be transposed, if by the transposition the intention is found and given effect.

mortgage money in repairing the old house, | 4. WILLS 460 CONSTRUCTION-INTERPREbut kept it, using a portion for the support TATION OF CLAUSE. of Samuel until his death in 1906, and of herself until she died in October 1911. The seventh, which applies only to the deed of the small lot, is disposed of by the cases of Gould v. Mather, 104 Mass. 283, 290, and Ladd v. Chase, 155 Mass. 417, 29 N. E. 637. The demandants have not argued their exceptions to the rulings given at the request of the tenants, and we treat them as waived. Exceptions overruled.

(225 Mass. 380)

RENWICK v. MACOMBER et al.
HOWES v. SAME.

(Supreme Judicial Court of Massachusetts.
Bristol. Jan. 3, 1917.)

1. WILLS 614(9) TEREST CREATED.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 979; Dec. Dig. 460.]

5. WILLS 435-RIGHTS OF LEGATEES-CONSTRUCTION BY TRUSTEES.

The fact that the trustees under the will and the first stepson and his children construed the will as giving the property to the children after the death of the other stepson, and that the trustees conveyed the real estate to the children, does not bind them to follow the same construction in disposing of the proceeds of the sale of some of the real estate, since an erroneous distribution of part of the estate does not entitle the recipients to the balance thereof. [Ed. Note.-For other cases, see Wills, Cent. Dig. § 946; Dec. Dig. 435.] 6. WILLS 212 AGREEMENT.

RIGHTS OF LEGATEES

Where the parties interested in a will make a compromise agreement under Rev. Laws, c. 148, §§ 15-17, which is approved by the court, or make a settlement apart from the statute, the will is nevertheless admitted to probate and valid, and the parties are relegated to their contractual rights.

Dig. 8 519; Dec. Dig. 212.]
[Ed. Note.-For other cases, see Wills, Cent.
Appeal from Probate Court, Bristol Coun-
ty; Arthur M. Alger, Judge.

A testatrix entered into an agreement with a stepson by which she promised to make a will devising the property she received from her husband to her two stepsons, and in accordance therewith executed a will in which she devised that property to trustees to convey one half to one stepson, who was then married and had two children, or, if he should die before testatrix, then to his children share and share alike, and to hold the other half of the property for the benefit of the other stepson, who had at that time no children, during his life, and, if he should thereafter die leaving children, to convey his share to such children, but, if he should die before testatrix leaving no children, then the first stepson should take all of the property. By a subsequent clause testatrix declared it to Separate petitions by Harold S. Renwick be her intention that the real estate left her by and Kenneth Howes against William B. her husband and the proceeds thereof should Macomber and others to reopen the account at her death go to his children, if living, and, of the respondents as trustees under the will if either be dead without issue, to the survivor of them, or with issue, to such issue. Both step- of Annie E. Renwick, deceased, and to comsons survived testatrix, and the stepson having pel respondents to pay over to petitioners the children died before the other, who later died, leaving no issue, but having disposed by will of the property received from his stepmother. That property was subsequently claimed by the children of the other stepson. Held, that the second stepson, having survived testatrix, took an estate for life with remainder subject to be divested if at his death he had issue, and that, having died without issue, the remainder was part of his estate and passed to the devisees named in his will.

[Ed. Note.-For other cases, see .Wills, Cent. Dig. 1402; Dec. Dig. 614(9).] 2. WILLS-293(6) TRINSIC EVIDENCE WILL.

CONSTRUCTION

the amount which respondent Macomber claimed under the will of Frederick W. Renwick, deceased. The probate court denied the relief prayed for, and petitioners appealed to the single justice, who, with the consent of the parties, reserved the case for the determination of the full court. Decree of probate court affirmed.

John Abbott, of Boston (S. Robinson, of New York City, of counsel), for petitioner Ex-Howes. J. W. & C. R. Cummings, of Fall AGREEMENT TO MAKE River, for petitioner Renwick. Eugene J. Hadley, of Boston, and Benj. B. Barney, of New Bedford, for respondents.

The agreement to make the will, having been executed only nine days before the will, could be considered in determining the intention of the testatrix, even if the will was not submitted to the other party thereto as the agreement provided.

[Ed. Note.-For other cases, see Wills, Cent. Dig. 88 676-678; Dec. Dig.

293(6).]

iciled in this commonwealth," and although BRALEY, J. [1] The testatrix "died domthe real property was situated in the state of New York, and under the doctrine of equi

3. WILLS 682(2)-CONSTRUCTION-INTEREST table conversion the proceeds of any sales CREATED-EQUITABLE FEE.

The first stepson, having survived testatrix, took an equitable fee in the real estate or in the proceeds of that part which testatrix sold under a power she reserved to herself, the income to be used by her during her life, and the principal to pass at her death the same as the real

estate would have passed.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 1607-1611; Dec. Dig. 682(2).]

by the trustees or of the testatrix in her lifetime are to be treated as land (Thissell v. Schillinger, 186 Mass. 180, 185, 71 N. E. 300), the parties have agreed that the cases are to be decided in accordance with the laws of her domicile. By the will of her husband the testatrix received the larger part of his estate, and his son Stanhope C. Renwick

vey the share of each as they respectively attain majority; and if there be but one child to jority. And I give to my executor power and convey the same to him on his attaining his ma

sion or partition or as he may deem advantageous for the party interested therein, to sell and such manner as he shall see fit, at public or convey at such times, upon such terms and in private sale, any or all of the real estate held by him in trust for my stepson, Frederick W. Renwick, or his children, the proceeds of such sale or sales to be held upon the same trusts stated herein. If at the time of my death Frederick W. Renwick shall have died, leaving no issue to survive him, in such case I give and said real estate and the proceeds thereof. devise to Stanhope C. Renwick the whole of my

having opposed admission of the will to probate, although his brother Frederick W. Renwick does not appear to have joined, the agreement between her and Stanhope termi-authority for the purpose of making such divinating the contest, executed nine days before the date of her will, after reciting that "in accordance with what she believes was the desire of her husband in order to secure to his said children maintenance in the future" she "has determined to and has made or is about to make her will by which she has devised to the said Stanhope C. Renwick and Frederick W. Renwick, children of her late husband, all the real estate now unsold and undisposed of by her which was devised to her by her husband by his last will and testament duly proved," and that "the terms of said devise have been made known to said Stanhope C. Renwick and are acceptable to him," she covenanted, "that the provision made in her will as aforesaid relative to the devise of real estate unsold shall not be changed during her lifetime, nor shall said will be revoked, changed or modified in respect of the said real estate except by the execution of another will which shall contain the same provisions in respect thereto.

*

* *

[2] It is immaterial whether a draft of the proposed will or of the will as executed was ever exhibited to him. The parties interested have acted upon the assumption that in so far as applicable to this portion of her estate the will was executed pursuant to the agreement, which is clearly admissible on the question of her intention. George V. George, 186 Mass. 75, 71 N. E. 85; Lydon v. Campbell, 204 Mass. 580, 91 N. E. 151, 134 Am. St. Rep. 702. While the covenant further provides, that with the approval of her counsel she could sell "any or all of said real estate," and the proceeds were to be held by a trust company "upon the trust to apply the net income" to her use during her life, "and upon her death to be held by the executor named in her will upon the trust," the unmistakable object of the agreement is to make certain that the property described shall pass by some form of devise to the stepsons Stanhope C. Renwick and Frederick W. Renwick, and to effectuate this purpose the second, third and fourth clauses of the will read as follows:

"Third. If at the time of my death I shall have sold any of the real estate devised to me by my husband, and now held by me, and I reserve full power and authority to make such sale in my discretion, the proceeds of such real estate I give to my executor to be held upon the same trusts and to be paid over in the same estate in case it shall not be sold by me; it bemanner as I have provided relative to such real ing my wish and intention that the said real estate and the proceeds thereof shall, after my death go to the children of my said husband, if living, and if either be dead without issue to the survivor of them, or with issue to such issue per stirpes and not per capita.

"Fourth. I hereby authorize said Stanhope C. Renwick to provide by will for the support and maintenance of his wife, Evelyn, in case of his decease before me, by devising and bequeathing to her a portion of the income of the property which he would take under this will if living, not to exceed one third of the income thereof, and to direct that the remainder of the income be paid to her during the minority of his children for their support and education."

[3] The stepsons survived the testatrix and it is obvious that the devise to Stanhope gave him an equitable fee in one-half of the land or of the proceeds, if under the power reserved the testatrix converted the whole or any part into money. Southard v. Southard, 210 Mass. 347, 355, 96 N. E. 941; R. L. c. 135, § 22. But as Frederick, who died testate leaving a will duly admitted to probate wherein the respondent Macomber is the sole beneficiary, never had any children, and Stanhope survived him, the original petitioners, children and sole heirs of Stanhope, contend, that their father became entitled to the whole estate. And the trustees having transferred to Macomber the proceeds of a part of the realty apparently converted by the testatrix, and their final account showing the transfer, having been allowed without notice to them, they ask to have the account reopened and the trustees charged with this amount. Parker v. Boston Safe Deposit & Trust Co., 186 Mass. 393, 71 N. E. 806. See R. L. c. 150, § 17, as amended by St. 1907, c. 438.

Second. I give, devise and bequeath all the real estate which I now hold * to my executor hereinafter named upon the trust to divide the same into two equal parts, the value thereof to be fixed by him and to convey one of such parts to Stanhope C. Renwick, son of my deceased husband, or in case he shall not then be living to his children, share and share alike per stirpes, subject to the fourth clause of this, my will; and the other of such parts to hold, collect the rents, issues and profits and to apply the same to the use of Frederick W. Renwick, another son of my said husband, during the term of his natural life; and upon his death, if he shall die, leaving child or children, to divide such part among such children, in equal shares. and apply such income thereof, to the use of 251, 49 N. E. 87; Thissell v. Schillinger, 186 such child or children respectively, and to con- Mass. 180, 185, 71 N. E. 300. The second and

114 N.E.-46

[4] It is a settled rule of construction that for the ascertainment of the intention of the testator words, sentences, and clauses in the will may be transposed, if by the transposition his purpose is found and given effect. Goddard v. Whitney, 140 Mass. 92, 98, 3 N. E. 30; Shattuck: v. Balcom, 170 Mass. 245,

And having died without issue, the remain-pality is not liable for the tortious acts of its der, being part of his estate, passed to the devisee named in his will. Chauncey v. Salisbury, 181 Mass. 516, 63 N. E. 914; Cushman v. Arnold, 185 Mass. 165, 169, 70 N. E. 43, and cases cited; Smith v. Smith, 186 Mass. 138, 71 N. E. 314; Gilkie v. Marsh, 186 Mass. 336, 340, 341, 71 N. E. 703; Reed v. Reed, 194 Mass. 216, 80 N. E. 219; Walton v. Draper, 206 Mass. 20, 23, 91 N. E. 884.