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that "it is contrary to the presumed intent of the testator to narrow the benefit intended for the first object of his bounty for the benefit of an object more remote.” Lovering v. Minot, 9 Cush. 151, 157; Damrell y. Hartt, 137 Mass. 218, 220.
The provisions of Gen. St. C. 89, § 12, Pub. St. c. 126, § 4, do not apply in this case, because the grandchildren took, as above stated, by descent. “Statutes are not to be construed as taking away a common-law right, unless the intention is manifest.” Melody v. Reab; 4 Mass. 473. Being in derogation of the common law, this statute should be strictly construed. It cannot, therefore, have the effect of taking from the heirs of the testatrix their “worthier and better title” by descent, and substituting therefor an inferior title under the devise. The cases of Bowers v. Porter, 4 Pick. 198, and Putnam v. Gleason, 99 Mass. 454, do not militate against this position. See Ellis v. Page, supra. If the devise be valid, this will does not, in the terms of the statute, devise the land “to a person for his life, and after his death to his heirs in fee,” or by words to that effect; for the use of the word "assigns” entirely changes the effect. See Weld v. Williams, 13 Metc. 486, 496, and cases cited above.
If the heirs of the testatrix took the fee in the demanded premises, whether by descent or by the devise, the tenant, as the surviving husband of the deceased granddaughter, is entitled to her undivided fourth part in fee, having had by him children born alive, having died intestate, and leaving no issue living, and each fourth part not exceeding $5,000 in value. St. 1880, C. 211, § 1; Pub. Şt. c. 124, § 1.
J. F. Cronan, for demandant.
Agreed facts waive all matters of pleading, so that the declaration, general issue, and disclaimer may be laid aside, and such judgment rendered, regardless of the pleadings, as the agreed facts will warrant. Esty v. Currier, 98 Mass. 500; West Roxbury v. Minot, 114 Mass. 546. The agreed facts show that plaintiffs took under said will, as tenants in common, an estate in the premises for their respective lives, and that, at their decease, respectively, their respective heirs take an estate in fee-simple, by purchase under said will, and that the heirs of said Susan took no interest in the premises by de, scent. Gen. St. c. 89, SS 12, 13; Pub. St. c. 126, SS 4, 5; Putnam v. Gleason, 99 Mass. 454; Bowers v. Porter, 4 Pick. 198. The estate held by Susan M. for life did not vest in her heirs till her decease, for no one is heir of the living. Putnam v. Gleason, ubi supra; Bl. Comm. c. 11, p. 170. The defendant, late husband of said Susan, took nothing in the premises under said will, for he was not an heir of said Susan. Gen. St. c. 90, § 19; Pub. St. c. 125, § 1; Id. c. 124, § 1; Lord y. Bourne, 63 Me. 379. As each of the plaintiffs, by the agreed facts, had, at the date of plaintiffs' writ, an estate for life in an undivided fourth part of the premises, and an estate in fee-simple in one undivided third part of the undivided fourth part which Susan M. held for her life, judgment should be entered for plaintiffs for all demanded premises and costs. Pub. St. .c. 193, § 10; Id. c. 173, § 7; Wells v. Osborn, 2 Mass. 446; Richards v. Randall, 4 Gray, 53; Cole v. Eastham, 124 Mass. 307; Kelley v. Meins, 135 Mass. 330. Or else the judgment should be entered that plaintiffs recover costs, and each plaintiff recover an undivided third part of the demanded premises, for the judgment should be co-extensive with and conform to the title proved. Pub. St. C. 193, § 10; Pub. St, c. 173, $$ 4, 5; Backus v. Chapman, 111 Mass. 386; Butrick v. Tilton, 141 Mass. 93; S. C. 6 N. E. Rep. 563; Webster v. Vandeventer, 6 Gray, 428.
FIELD, J. By the seventh article of the will, as we construe it, the four grandchildren took, as tenants in common, life-estates in the real property of the testatrix, with contingent remainders to their heirs. Püb, St. 6. 120, 4;
Gen. St. c. 89, § 3; Pub. St. c. 126, § 4; Gen. St. c. 89, § 12; Putnam v. Gleason, 99 Mass. 454. On the decease of Susan M. Lavery, one undivided quarter of the real property vested by the will in the persons who were then her heirs. These heirs do not take by descent from Susan, but under the will, as the persons designated to take on the termination of her life-estate, and the remainder is contingent, because, until her death, it cannot be determined who her heirs will be. The words of the will, "to their respective heirs, executors, administrators, and assigns,” are to be construed as if they read, “to their respective heirs, and their executors, administrators, and assigns;" and the words, “executors, administrators, and assigns” were probably added to make it certain that the heirs took a fee in the real estate, and took the personal property absolutely. The same conclusion is reached if these words are disregarded. Without them the intent is clear that the grandchildren should take only a life-estate, and that, on their decease, respectively, the property should go to their heirs; and this intent is not to be defeated by the addition of formal words like these, when, in the connection in which they are used, their significance is uncertain.
Susan M. Lavery died December 1, 1884, leaving no issue, nor father or mother, but leaving a husband, who is the tenant in this action, and leaving three brothers who are the demandants. These demandants are the remaining grandchildren of the testatrix named in the seventh article of the will, and by the will they took a life-estate in three-quarters of the land demanded, and, if they are the sole heirs of Susan, they took, on her death, an estate in fee-simple in the remaining quarter. This quarter is of less value than $5,000. Susan left no estate, and the claim of the tenant is that, under St. 1880, c. 211, § 1; Pub. St. c. 124, § 1,—he would have taken as heir of Susan an estate in fee in this one-quarter, if Susan had died seized of it, and intestate, and that, on her death, he took the same estate under the will, as he was the only person who could be called her heir to this property.
The word “heir” of itself imports succession to property ab intestato. Blackstone's definition is this: “An heir, therefore, is he upon whom the law casts the estate immediately on the death of his ancestor.” 2 Comm. 201. But in defending the ancient rule that the inheritance shall never descend, he says: “We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi only.” Id: 211. After the rule was adopted that inheritance might descend, the ancestor was the person from whom the inheritance devolved upon the heir, and a child might be the ancestor of his parent. The earliest rules for the descent of real property upon the death of the owner of an inheritable estate were established by the customary law; but the common law has been largely changed in England by statute, and, in this commonwealth, the descent of real estates held in fee-simple has, from very early times, been regulated by statute. It is the law, whether customary or statutory, which determines who shall inherit real property when the owner dies intestate; and the law alone decides whether the word "heirs” shall include relations or connections by affinity, as well as relations by consanguinity. An heir, therefore, is he upon whom the law casts an estate of inheritance immediately on the death of the owner. Dower and an estate by the curtesy were initiate during the life, and became consummate on the death, of the husband or wife who was the owner of an estate of inheritance, and these estates could not be defeated by the alienation or by the will of the owner of the inheritance, and could not be taken for the payment of his debts; and the wife or the husband did not take as heirs, but as purchasers. But by St. 1880, c. 211, § 1, if "any person shall die intestate, without leaving issue living, and shall leave a husband or wife surviving, such husband or wife shall take in fee the real estate of such deceased' to an amount not exceeding $5,000 in value,” and this, by section 2, may be set off by metes and bounds, as partition of land is made, or may be assigned as an undivided portion. Under this statute the husband or wife take only if the deceased die intestate, seized of the estate, and they take in fee. They take, also, subject to the liability of having the land sold to pay the debts of the deceased, and the expenses of administration. If there was ever any doubt about this, the doubt was removed by St. 1881, c. 112, § 1,, which amended St. 1880, c. 211, § 1, by inserting after the word “deceased” the words “remaining after the payment of the debts of the deceased.” See Pub. St. c. 134, § 2. In all essential respects the husband or wife take an estate in fee under St. 1880, c. 211, § 1, precisely as an heir takes; and we think they are to be considered as statutory heirs.
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Although, in the case at bar, the heirs of Susan do not take from her by inheritance, but take as persons designated by the will; yet we know of no way of determining the persons intended by the will except by ascertaining the persons who by law would have inherited the estate from her if she had died seized of it and intestate. If, in determining who are heirs, we depart from our statutes, and go back to the common law, or to the customary law of the county of Kent in gavelkind tenures, we might be required to recognize rules of descent for estates in fee-simple, which have not been in force in the territory of this commonwealth since the passage of chapter 14 of the Province Laws, 1692–93. 1 Prov. Laws St. 43. See Ancient Charters, C. 104, § 3, (1641.) In cases where the word "heirs” in a deed or will has been construed to mean distributee of personal property under the statute of distribution, and that statute has given the whole or a part of the personal property of a deceased husband or wife to the wife or the husband, they have taken the property in the same manner as under the statute. Sweet v. Dutton, 109 Mass. 589; Minot v. Harris, 132 Mass. 528; Houghton v. Kendall, 7 Allen, 72; In re Steveens' Trusts, L. R. 15 Eq.110; Jacobs v. Jacobs, 16 Beav. 557; Doody v. Higgins, 2 Kay & J. 729; Wingfield v Wingfield, 9 Ch. Div. 658, 666.
By the English courts, the husband is excluded from, while the wife is included among, the distributees of personal estate, because it is held that a husband does not take the personal estate of a deceased wife by virtue of the statute of distribution. In the case at bar the husband takes the estate under the statute, and not by virtue of any marital rights at common law. Milne v. Gilbart, 2 De Gex, M. & G. 715; S. C. 5 De Gex, M. & G. 509. In many of the cases in which it has been decided that the husband is not heir to the wife, or the wife to the husband, there has been no statute which has given to either, in the real property left by the other, any such estate as that given by St. 1880, c. 211, § 1; Pub. St. c. 124, § 1.
The jụdgment is reversed; and, as the case is submitted upon agreed facts, judgment may be entered without regard to the form of the pleadings. Judgment should be entered for the demandants for three undivided fourth parts of the land demanded, and for the tenant for one undivided fourth part, and for his costs accruing since he filed his plea under which he disclaimed title to three undivided fourth parts. Cole v. Easthan, 124 Mass. 307; Pub. St. C. 173, § 9.
(143 Mass. 410)
TYLER 0. BRIGHAM and others.
(Supreme Judicial Court of Massachusetts. Middlesex. January 10, 1887.) MORTGAGE-BILL TO REDEEN-ASSIGNMENT OF EQUITY.
In a bill to redeem real estate from a mortgage given to one of the defendants, and assigned to the other two, where it appears that, before the assignment, a sum more than sufficient to pay the mortgage debt was received by the mortgagee, and that the assignees, who, before the filing of the bill, had acquired the equity under an agreement with the plaintiff to hold it in trust for him, had conveyed their whole interest to the plaintiff by quitclaim deed since the bill was filed, the bill should be dismissed as to the assignees, and a decree entered for the plaintiff against the mortgagee for the balance due the plaintiff from him. Bill in equity, inserted in a writ, to redeem certain mortgaged real estate under chapter 140 of the General Statutes. The superior court found for the plaintiff, and the defendants appealed. The facts are stated in the opinion.
J. T. Joslin, for defendants.
No decree can be made against the original defendant, or his executor, for the redemption of a mortgage not held by either, and in which neither has ever had any interest since the commencement of this action. The statute clearly applies in this case. Gen. St. c. 140, § 24; Sanborn v. Dennis, 9 Gray, 208; Gen. St. c. 140, SS 13–16. The mortgagor, after he has conveyed his equity of redemption in mortgaged premises, can only be joined with the owner of the equity in a writ of entry by the mortgagee to foreclose, by virtue of the statute. Before the statutes, no such joinder could be made. Olney V. Adams, 7 Pick. 31. No such enabling statute provides for bringing a bill in equity to redeem a mortgage against the mortgagee, after he has assigned and conveyed all his interest in the mortgaged premises. Long before the action was commenced, the plaintiff had conveyed away all his right to redeem. The fact that the Holdens took the mortgage without the knowledge or assent of the plaintiff does not affect the case at all. They had a perfect right to buy the mortgage, and, their assignment being recorded, it was notice to the plaintiff. The right to obtain a judgment against a mortgagee for any overpayments of the mortgage debt will not avail the plaintiff here. No action can be maintained against the Holdens. By agreement with the plaintiff they bought his right to redeem.
W. B. Gale and J. W. McDonald, for plaintiff.
This suit was properly brought under Pub. St. c. 181, § 21. The sale on execution of the equity. of redemption did not cut off the right of the mortgagor to bring this bill. The sale was only a colorable sale, and the mortgagor was not thereby wholly divested of his interest in the equity. The equity has since, however, become vested in the mortgagor. See Bigelow, Eq. 58, and cases cited. All parties who are interested in the taking of an account should be made parties to the suit in which the account is to be taken. Doody v. Pierce, 9 Allen, 141; 2 Jones, Mortg. 1100. Francis Brigham, the mortgagee, was a party so interested. Bacon v. Abbott, 137 Mass. 397; Pub. St. c. 181. By the assignment of the mortgage to the Holdens, the mortgage did not merge so as to prevent the mortgagor from bringing his bill to redeem. 1 Hill. Mortg. 526; Grover v. Thatcher, 4 Gray, 526; Hunt v. Hunt, 14 Pick. 374. The rights of any of the defendants are not prejudiced by this. suit. The court having jurisdiction, may award, under Pub. St. c. 181, S. 36, judgment and execution against the executor of the mortgagee for the sum due the plaintiff, as found by the master. Doody v. Pierce, 9 Allen, 141;. Haskins v. Hawkes, 108 Mass. 379.
FIELD, J. This is a bill in equity, inserted in a writ to redeem real estate from a mortgage given by the plaintiff to Francis Brigham in 1848. The writ is dated March 10, 1877, and service was made upon Brigham on May 17, 1877. Subsequently, William P. Holden and Charles M. Holden were made parties defendant. Neither the writ nor a copy was deposited in the office of the clerk of the court until the entry in June, 1877, which must be taken as the time of the commencement of the suit. Gen. St. c. 140, § 24. At that time William P. Holden and Charles M. Holden were the owners of the mortgage and the mortgage note, by an assignment dated April 7, 1877, and duly recorded on April 9, 1877. On the tenth day of March, 1877, they also became the owners of the plaintiff's equity of redemption in the mortgaged real estate, by purchase at a sheriff's sale under an execution issued upon a judgment in an action against the plaintiff, in which his equity of redemption had been attached on mesne process, on June 21, 1876, and a deed was duly executed and delivered to them of this equity of redemption, and was duly recorded. On May 13, 1878, the Holdens conveyed the premises described in the mortgage, by quitclaim deed, to the plaintiff. At the time of this conveyance, more than one year had expired from the levy of execution upon the plaintiff's equity of redemption, and the plaintiff's right of redemption from the sale on execution to the Holdens was gone. When they conveyed to the plaintiff, the mortgage had merged in the equity, unless the agreement between the Holdens and the plaintiff, that they should purchase the equity and hold the premises in trust for him, prevented such a merger. The quitclaim deed from the Holdens to the plaintiff conveyed whatever title they had to the premises, and conveyed an absolute fee-simple, if the mortgage had merged in the equity of redemption; and, if it had not, the deed conveyed the equity, and also operated as an assignment of the mortgage; and, on accepting this deed, the plaintiff became seized of an absolute estate in fee-simple. See Hunt v. Hunt, 14 Pick. 374.
It thus, appears that, at the commencement of this suit, Francis Brigham did not hold the mortgage, and had no interest in it, or in the note secured by it; and that, since the commencement of this suit, the Holdens have conveyed both the equity of redemption and the mortgage to the plaintiff. The plaintiff cannot maintain his bill to redeem, as there is no outstanding mortgage. The master has found that Francis Brigham received, before the commencement of this suit, and while he held the mortgage, a sum of money inore than sufficient to satisfy the mortgage debt, and that the excess, with all due allowances, and with interest up to the date of the writ, amounts to $345.37. This, sum the plaintiff could have recovered of Brigham in an action of contract, if no suit for redemption had been brought. Pub. St. c. 181, § 43; Gen. St. c. 140, § 30. The plaintiff properly brought a bill to redeem the land from this mortgage, ás, at the commencement of the suit, this mortgage was outstanding; and, although Brigham had before this assigned the mortgage to the Holdens, he was properly made a defendant, because he was interested in the account to be taken.
In this suit, if the mortgage had remained in the hands of the Holdens, and if it appeared that either Brigham or the Holdens had received more than was due upon the mortgage, the plaintiff would have been entitled to "judgment and execution" against the defendants, “jointly or severally, as the case may require, for the sums received by them, or either of them, respectively,” beyond the amount due on the mortgage. Pub. St. c. 181, § 36. The suit, for the purpose of redemption, has been defeated by the conveyance made by the Holdens to the plaintiff pendente lite; but, jurisdiction in equity having attached, the bill may be retained, in order to determine whether Francis Brigham received, while he held the mortgage, more than the amount of the mortgage.debt, and, this having been found, a decree may be entered for the plaintiff.
As Francis Brigham has died during the litigation, and Rufus H. Brigham, the executor of his estate, has appeared and defended the suit, the decree should be substantially like a judgment at law.
The decree entered in the case is reversed. The bill should be dismissed as to William P. Holden and Charles M. Holden, and a decree should be entered that the plaintiff recover of Rufus H. Brigham, as he is executor of the will: of Francis Brigham, deceased, the sum of $345.37, with interest from the date of the writ, as debt or damages; and that the plaintiff recover his costs of suit of 'Rufus H. Brigham; and that execution, as at common law, issue for said debt or damages against the
goods and estate of said Francis Brig ham, deceased, in the hands of said Rufus H. Brigham, executor; and that another execution for said costs, to be taxed by the cteřk, issue against the