
    Cynthia P. Lyon vs. Charles M. Marsh.
    Worcester.
    November 10.
    16, 1874.
    Wells & Devens, JJ., absent
    A testator devised all of his estate, both real and personal, to his wife, “ to her sole and separate use and benefit forever,” and if there should be any part thereof left at her decease, “it is my wish and desire that it should be disposed of as follows,” &c. Held, that the wife took either an estate in fee, or an estate for life with power to convey in fee; and that she could maintain a bill in equity for specific performance against one who had agreed to buy the land devised, and to whom she had agreed to convey “ a good and clear title to the same in fee simple, free from all incumbrances.”
    Bill in equity for the specific performance of a written agreement by which the defendant agreed to purchase a farm in Leicester, and the plaintiff agreed to sell and convey it to him “ by a good and sufficient warranty deed, conveying a good and clear title to the same in fee simple, free from all incumbrances.” The only defence set up in the answer was that the defendant was not satisfied that the plaintiff took an estate in fee by the will of her husband, which was the only source of her title, and the whole of which, after a direction to pay debts and funeral charges, was as follows :
    “ I give and bequeath all the remainder of my estate, both real and personal, to my beloved wife, Cynthia Lyon, to her sole and separate use and benefit forever; and at her decease, if there should be any part thereof left, it is my wish and desire that it should be disposed of as follows, namely:
    “ First. I give and bequeath to my son, Frederick A. Lyon, five hundred dollars.
    “ Second. The remainder, if there should be anything left after paying the above legacy, I direct that it shall be equally divided between my three children, namely, Frederick A. Lyon, Hannah S. Thurston, wife of Lyman D. Thurston, and Elizabeth E. Marsh, wife of Charles C. Marsh, or their heirs forever.
    “ And I hereby appoint my wife, Cynthia Lyon, and my son, Frederick A. Lyon, of said Leicester, to be the executors of this my last will and testament, authorizing them to sell and dispose of and convey all of my estate in such a manner as in their opinion they shall deem expedient and proper.”
    
      The cause was heard on bill and answer by Gray, G. J., who entered a'decree for the plaintiff, and the defendant appealed to the full court.
    
      H. L. Parker, for the plaintiff.
    
      W. S. B. Hopkins, for the defendant.
   By the Court.

The plaintiff took by the will of her husband either an estate in fee, or at least an estate for life with power to convey in fee. Bowen v. Dean, 110 Mass. 438. Kimball v. Sullivan, 113 Mass. Decree affirmed.  