Life Tenant: Power to Sell or Mortgage
Look at the case of Kent v. Morrison, 153 Mass. 137, 26 N.E. 427 (1891). In that case a man left his wife a life estate in real estate with "full power to sell and convey the same by deed, (part or all of it,) and the proceeds thereof are to be used for her comfort and otherwise as she may think proper." The court held that this included a power on her part to mortgage the property. But the court distinguished the case from Hoyt v. Jaques, 129 Mass. 286 (1880) wherein the power to mortgage was not found in words that provided that the life tenant could "sell and convey any and all of my real estate, if necessary, to secure [her] maintenance." So what's the difference? The distinction, as the court pointed out, is that the life tenant in Kent had the power to sell and convey and make the proceeds her own. The court said this:
"Such a power is as simple as that of an owner , only it must be executed by deed. It is an absolute and unrestricted power to sell for the benefit and in the discretion of the devisee of the power, and we think that this includes a power to mortgage." (Emphasis added.)
The case of Bramley v. White, 281 Mass 343, 183 N.E. 761 gives some insight into this issue. In Bramley Walter Bramley died and left a will which devised to his wife Carrie "all my real and personal property . . . . At her death I request that what remains be divided among my three children . . . ." The issue was whether Carrie got an absolute fee or merely a life estate. The court cited Dallinger v. Merrill, 224 Mass. 534, 113 N.E. 279 and acknowledged that if Carrie got an absolute fee, then the gift over to the children would be void. In holding that Carrie got only a life estate, thus preserving the gift over to the children, the court said:
The fact that a donee has the power to sell or otherwise dispose of property given by will does not in itself prevent the gift being construed as a life interest.
Although, admittedly, not deciding the issue, the court seems to suggest that the language in the will, though not as strong as that in other cases, would include the power to dispose of the real estate. Compare, Sparhawk v. Goldthwaite, 225 Mass. 414, 114 N.E. 718; Lord v. Smith, 293 Mass 555, 200 N.E. 547.