Boland v. Mckowen

• Decision Date: 01 December 1905
• Citation: Boland v. Mckowen, 189 Mass. 563, 76 N.E. 206 (Mass. 1905)
• Parties: BOLAND v. McKOWEN et al.
• Court: Supreme Judicial Court of Massachusetts

189 Mass. 563

76 N.E. 206

BOLAND v. McKOWEN et al.

Supreme Judicial Court of Massachusetts, Bristol.

December 1, 1905

COUNSEL

Richard P. Coughlin, for appellant.

F. A Milliken, for appellees.

OPINION

KNOWLTON C.J.

In 1894 certain real estate was conveyed to Edward J. Boland and Agnes Boland; these persons being husband and wife. In 1902 they conveyed the property to Catherine McKowen and took back from her, on the same day and as a part of the same transaction, a mortgage to secure a part of the purchase money. The mortgage runs fo 'said Edward J. Boland and Agnes Boland and their heirs,' etc., and the note secured by it is payable in like manner to them jointly. Edward J Boland having deceased, and the note remaining unpaid, the question before us is whether his widow, Agnes Boland, has a right to collect it, or whether the executor of the husband's will, Edward J. Boland, Jr., the present claimant, is entitled to one-half of it. The estate of the husband is ample to pay his debts, so that the rights of creditors are not involved.

At common law a conveyance to two or more persons, without special provisions, created an estate in joint tenancy unless these persons were husband and wife, in which case it created an estate by entirety, which differs from a joint tenancy in the fact that the tenancy cannot be severed and the right of the survivor terminated by either party. Shaw v. Hearsey, 5 Mass. 521; Appleton v. Boyd, 7 Mass. 131; Wales v. Coffin, 13 Allen 213; Pray v. Stebbins, 141 Mass. 219, 4 N.E. 824, 55 Am. Rep. 462. See, also, Pease v. Whitman, 182 Mass. 363, 65 N.E. 795; McLaughlin v. Rice, 185 Mass. 212, 70 N.E. 52, 102 Am. St. Rep. 339. By St. 1785, p. 554, c. 62, § 4, the common law was changed, so that conveyances to two or more persons were to be interpreted as creating estates in common, unless it clearly appeared from the language that estates in joint tenancy were intended. It was held in the cases above cited that this statute did not apply to mortgages or conveyances to husband and wife. Rev. St. 1836, c. 59, §§ 10, 11, continue this statute in force, with an expressed provision, in accordance with the previous decisions, that it should not 'apply to mortgages, nor to devises or conveyances made in trust, or made to husband and wife,' and the provision remained without material change until the enactment of St. 1885, p. 679, c. 237, Gen. St. 1860, c. 89, §§ 13, 14; Pub. St. 1882, c. 128, §§ 5, 6. By this last enactment conveyances to husband and wife are included in the provisions in regard to conveyances to other persons, so that conveyances and devises to husband and wife, made since the enactment, do not create estates by entirety unless an intention to create such an estate is expressed in the writing. But in this, as in the former statutes, mortgages are excepted from the provision, and these are left to be governed by the rules of the common law.

In Pray v. Stebbins, ubi supra, and in Phelps v. Simons, 159 Mass. 415, 34 N.E. 657, 38 Am. St. Rep. 430, it was held that the statutes in regard to the separate property and separate rights of...