Butterfield v. Reed

Decision Date05 January 1894
PartiesBUTTERFIELD v. REED.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

The defendant's deed, referred to in the opinion, was executed by Ann R. Randall, daughter of Thadeus Munroe, and by Josephine A. Randall and Anne H. Randall, her daughters, and purported to convey a mill privilege and an appurtenant easement of flowage over plaintiff's land. Following is that part of the will of Thadeus Munroe which was incorporated into the bill of exceptions: "I also give to my said daughter, Rebecca Ann Randall, the use improvement, and income of my 'Granger Estate,' so called, situated in said Lexington; also, the use improvement, and income of my 'Porter Farm,' so called, situated partly in Lexington and partly in Woburn with right of cutting off the wood when she may think proper so to do. The two last-mentioned bequests are to be subject to the life estate to my said wife, as expressed in the bequests to her. And in order to render more clear my intentions, as it regards the disposition of certain portions of my real estate, my wish and desire is that so much thereof as I have devised with limitations shall be and remain in my family at least during the generation which succeeds me, if no longer."

COUNSEL

Lund, Davis & Welch, for plaintiff.

J.R. Reed and P.H. Cooney, for defendant.

OPINION

MORTON J.

The defendant justifies under his deed. The plaintiff contends that he took under it no interest in the premises described in it. But we think it is clear that he did. The widow took, under her husband's will, a life estate, which she could and did convey to the defendant by the deed; and the two daughters took the remainder in fee, subject to the contingency that it would go to the children of the son, if they died before their mother. It is too well settled in this state, to admit of question now, that such an interest may be conveyed, and there can be no question that it was conveyed by the deed in this case to the defendant. Putnam v. Story, 132 Mass. 205; Dole v. Keyes, 143 Mass. 237, 9 N.E. 625; Dodd v. Winship, 144 Mass. 461, 11 N.E. 588; Wainwright v. Sawyer, 150 Mass. 168, 22 N.E. 885. The interest of the daughters was not a mere possibility, but was a vested interest. Putnam v. Story, supra. We see nothing in the extract from the will with which we have been furnished indicating an intention on the part of the testator that the widow should hold the remainder in trust for the parties entitled to it. The attempted restraint upon alienation in the concluding clause is contrary to law and ineffectual. Gleason v. Fayerweather, 4 Gray, 348; Bank v. Davis, 21 Pick. 42; Hall v. Tufts, 18 Pick. 455.

The plaintiff contends, in the next place, that the grantors were disseised by her at the time when they made and delivered the deed to the defendant. But the nature of the defendant's rights, being a right of flowage, was such that its continued existence was consistent with the use and occupation of the premises by the plaintiff. There was nothing in the nature of the acts done by the plaintiff upon the premises that was an interference with, or adverse to, the right of the defendant or his predecessors in title. So long as the defendant, and his predecessors in title, did not exercise the right of flowage, the plaintiff, and her predecessors in title, were at liberty to use the land. Doubtless, the plaintiff, and those who preceded her, could have used the premises in so adverse and exclusive a manner that the lapse of 20 years would have barred the right of the defendant, and those under whom he claims. But the use, in the present case,...

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