Husband and Wife. Writ of Entry. A wife, who under R.L.c. 153, § 33, has obtained a decree that she was deserted by her husband and is living apart from him for justifiable cause, by § 36 of the same chapter may convey her real property "in the same manner and with the same effect" as if she were sole.
Where a wife, who under R.L.c. 153, § 33, had obtained a decree that she had been deserted by her husband and was living apart from him for justifiable cause, in good faith conveyed certain real estate to a trustee in fee upon the trusts that he was to pay her the net income during her life and upon her death was to convey the property to her two nieces in fee simple unless otherwise directed by a written request of the grantor or by her will, and was to convey the property as the grantor might request in writing during her lifetime or might direct and appoint by her will, it was held, that the trustee had a freehold estate in the property sufficient to maintain a writ of entry against the husband; as the power of revocation and appointment, if valid against the creditors of the grantor and against her husband in case he survived her, which here was not open to consideration, did not affect the present legal title of the trustee.
De COURCY, J.
The title to the property in question was in Inez E. Fox, the wife of the tenant Edgar B. Fox. By the decree of the Probate Court dated December 12, 1910, on her petition under R.L.c. 153, § 33, it was adjudged that her husband had deserted her, and that she was living apart from him for justifiable cause. By virtue of § 36 of the statute she was thereafter free to convey her real property "in the same manner and with the same effect" as if she were sole.
The deed by which she conveyed the property to the demandant "and his heirs and assigns" was in the ordinary quitclaim form and vested in him the legal title in fee, but upon certain trusts. So far as now directed he is to pay over the net income to her during her life, and upon her decease is to convey the property to her two nieces in fee simple. Plainly he has an estate of freehold sufficient to prosecute a writ of entry; and her motive in making the conveyance is immaterial. R.L.c. 179, §§ 1, 4. Packard v. Old Colony Railroad, 168 Mass. 92. Cleveland v. Hallett, 6 Cush. 403. Curtis v. Galvin, 1 Allen, 215. See Fay v. Taft, 12 Cush. 448.
The tenant's attack is directed against the validity and effect of the provisions in the deed by which Mrs. Fox may direct the trustee to convey the property to another during her lifetime, or to transfer it after her decease as she shall appoint by her last will. This does not purport to affect the nature of the estate conveyed to the trustee, but only to render defeasible the remainder in fee given to the nieces. Whipple v. Fairchild, 139 Mass. 262. The power of revocation does not affect the present legal title in the demandant. Stone v. Hackett, 12 Gray, 227.
It is unnecessary to consider the validity of these provisions as against creditors of Mrs. Fox, or as affecting possible future rights of her husband Edgar B. Fox in the event of his surviving her. See Crawford v. Langmaid, 171 Mass. 309; Kelley v. Snow, 185 Mass. 288; McEvoy v. Boston Five Cents Savings Bank, 201 Mass. 50; Russell v. Webster, 213 Mass. 491. No such issue is open to the tenant in these proceedings, especially in view of the statement in the decision of the Land Court that "no evidence of fraud in the conveyance of the property was introduced;" and we express no opinion thereon.
Exceptions overruled.