Temple Fay & others vs. Fitch Winchester, 4 Met. 513

Shaw, C. J. As we understand the case stated in this report, it is this : Alpheus Fay, the ancestor of the demandants, made his will in 1823, by which he gave all his estate, real and personal, to the tenant, Winchester. At that time, the testator held several mortgages on estates, not foreclosed. Some time after making the will, the testator executed a power of attorney to Winchester, authorizing him, amongst other things, to sell, lease or exchange real estate. One of the questions made at the argument was, whether the attorney, under this power, could convey estate afterwards acquired by the constituent.

We have no doubt, that if the authority were otherwise sufficient to .convey such estate of the constituent, it would extend as well to after-purchased estate, as to estate held by the constituent at the time of the execution of the power. But the real question is of a different character.

As the law stood, when the will in question was made, the devise would not operate to pass after-acquired real estate ; and by a well known rule of law, in force in this Commonwealth, estate of which the testator had a mortgage not foreclosed at the time of the execution of the will, but foreclosed before the testator’s decease, was regarded as after-purchased real estate, and did not pass by the will. This rule was known and under stood by Winchester. Ballard v. Carter, 5 Pick. 112. Brigham v. Winchester, 1 Met. 390.

As the will then stood, if there had been no republication revocation or other change, the real estate, upon which thu mortgages had so become foreclosed, would have remained as undevised property, and descended to the heirs at law, notwithstanding the residuary clause in the will, giving all the real ano personal property to the tenant, Winchester.

In this state of things, Winchester availed himself of the power of attorney, and conveyed by deed to his father, residing in Salem, the farms in Southborough, taking his promissory note for the purchase - money, and taking a lease back to the testator; the rent reserved being equivalent to the interest on the notes. The deeds wero not recorded, and it does not appear that they were known to the testator; nor does it appear that they were not. After the decease of the testator, the notes were given up, and J. B. Winchester, the father, executed deeds of conveyance to his son, the tenant.

This transaction, upon the face of it, bears strong marks of being colorable and pretended, and not a real and actual sale. Perhaps if it stood thus, it would be proper to submit this evidence to a jury, with instructions, that if it were colorable and pretended, and not intended as a real sale to J. B.

Winchester j if the purpose was to defeat the legal operation of the will of the testator and the law of descent, and merely put the property in a situation to appear to pass as personal property, under the operation of the will, and prevent its going by descent to the heirs ; it was an unwarrantable use and an abuse of the power, and fraudulent; and, as against the heirs, nothing passed by the deeds to J. B. Winchester.

But as the case stands, it is expressly found, that the intent of this conveyance under the power was “ to secure said estates to said Fitch Winchester, and to prevent their descent to the heirs of said Alpheus Fay, and because the said Fitch Winchester knew that said estates would not pass to him under said will.” This was testified to by the grantee, and therefore this purpose must have been known to him. We think the only legitimate and proper use which Fitch Winchester could make of the power, was to execute it for the use and benefit of the testator.

It was a naked power only, unconnected with any interest in the attorney himself. To use it for his own purposes, and to defeat the will of the testator and the law of descent, with a view to make the will operate upon property, for his own benefit, upon which, by the force of law and 'he act of the testator, it would not operate, was a fraudulent ise of it, and the estate did not pass by it. Nor do we think the force of this consideration would be jbviated by proof that the testator had the intent, or declared the ntent, that all his property should go to Winchester. That in-lent was declared by the will itself.

But the law would not have carried that intent into effect, so as to pass the after-purchased real estate ; and the devisee could himself do no act, to make the will extend further and give it a wider operation, than the testator himself had given it. It is very clear that an intent of the testator, not carried into execution, by an actual republi cation of the will, or other legal devising act, could not have given the devisee such after-purchased estate; and no act of the devisee himself, in aid of such an intent, not sanctioned by the testator, could make it more effectual.

The court are therefore of opinion that the conveyance by Fitch Winchester to J. B. Winchester, in the manner and for the purposes stated, was a fraud upon the testator and the heirs at law ; that nothing passed by , it; that Alpheus Fay died seized of the demanded premises ; and that the estate descended to the heirs at law. New trial ordered.