Barnes v. Boardman

• Decision Date: 09 May 1889
• Parties: BARNES et al. v. BOARDMAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

149 Mass. 106

21 N.E. 308

BARNES et al. v. BOARDMAN et al.

Supreme Judicial Court of Massachusetts, Essex.

May 9, 1889

COUNSEL

J.P. &amp B.B. Jones, for appellants.

C.U Bell and A.D. Bosson, for appellees.

OPINION

C ALLEN, J.

1. The respondents contend that the testator left all of his land to his widow absolutely, and, if this is so, the title of the petitioners to the lands of which partition is sought wholly fails. But such is not the true construction of the will. The two clauses most material to be considered are the following one of which is near the beginning, and the other near the end, of his will: "Firstly. I give to my wife, Sarah, my dwelling-house as now stands, together with all the land, furniture, silver plate, spoons, notes, mortgages, with the notes to the same, my books, papers, etc., chattels, at the time of my decease." "Lastly. As to all the rest, residue, and remainder of my personal and real estate, goods and chattels, of what kind and nature soever, I give and bequeath the same to my said wife, Sarah, during her life only." And appended to the will are the words, with reference to the latter clause: "During her life only--my will and desire." The testator owned the dwelling-house and other real estate. The words "together with all the land," in the first clause, obviously mean all the land connected with or belonging to the dwelling-house. The two clauses stand perfectly well together. The first gives to her in fee the dwelling-house and the land connected therewith. The latter clause gives the other real estate to her for life, and leaves the remainder undisposed of. It follows that the petitioners are not cut off from maintaining their petition by anything contained in the will.

2. As to three lots of land described in the petition, the same being a portion of a larger lot known as "No. 10 Howard Street," the respondents admit that they were owned by the testator at his decease, and that the petitioners are entitled to partition thereof, unless their title was divested by a sale for taxes to Benjamin G. Boardman, Jr., the father of the respondents. The taxes were assessed in 1857, and the sale was made in 1859. The assessments were made upon each of the three lots separately, but the petitioners contend that the sale was of the three lots together for one integral sum. The respondents do not deny that the tax-title was void if the sale was made in that manner, (Hayden v. Foster, 13 Pick. 492;) but contend that it does not appear that the sale was so made. Owing to the lapse of time, and other causes, it was found impossible to produce other evidence than what may be gathered from the collector's notice or advertisement, and his deed. Upon examination of these it appears to us that the three lots were sold together for one integral sum. The notice shows nothing either way, being consistent with either mode of sale. The deed recites but one sum as the consideration money paid "for the discharge of said taxes and intervening charges." It also says, "No person appearing to take a less quantity of said lots for said taxes and charges," as if the lots, taxes, charges, all went together. It adds, "An advertisement for the sale of which for the non-payment of said tax and incidental charges I caused to be published," etc., as if the taxes on the several lots were all treated as one tax. "The sale" is also referred to three times in the singular number. We find nothing whatever to show that the lots were sold separately, unless it be the recital of the several assessments, and the covenant of the collector that he observed the directions of the law; but these are insufficient to outweigh the indications found elsewhere in the deed. We are therefore of opinion that the tax-sale was void, and that the petitioners are entitled to partition of the three lots therein embraced; and this renders it unnecessary to consider the question which has been argued, whether the respondents can avail themselves of a title so obtained by Benjamin G. Boardman, Jr., who was a tenant in common with Charles W. Boardman, under whom the petitioners claim.

3. In reference to certain other lots whereof partition is sought namely, the two lots on North Oak street, as it was formerly called, the respondents contend that the title thereto of Benjamin G. Boardman, Sr., failed, so that none of the parties to the present proceedings appear to have any title, and that therefore the petitioners cannot maintain the petition for partition of the same. The title of Boardman, Sr., was derived as follows: A former owner made a mortgage of the premises to Joseph Gass, who on February 26, 1848, by an instrument under seal, and subsequently acknowledged and recorded, assigned to said Boardman "all the right, title, and interest which I have to the land described in the within deed of mortgage, and also all my right and title to the debt described therein." From...