Daley v. Daley
| Decision Date | 24 February 1941 |
| Citation | 308 Mass. 293,32 N.E.2d 286 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | ALICE J. DALEY, trustee, & others v. ELIZABETH R. DALEY& others. |
September 24, 1940.
Present: FIELD, C.
J., LUMMUS, QUA COX, & RONAN, JJ.
Practice, Civil Premature proceeding. Adverse Possession. Real Property Remainder, Adverse possession. Devise and Legacy, Acceptance by beneficiary. Trust, Discretionary powers of trustee.
Until a devisee under a will clearly and unequivocally renounces the devise acceptance is presumed.
The remainderman of real estate following a life estate had no right, after the life tenant had lost his estate by adverse possession by a third person but while the life tenant was still living, to enter upon the premises and maintain a writ of entry; he must wait until the expiration of the life estate.
By a provision in a will giving real estate to the testator's brother for the benefit of the testator's wife and children "to be managed by" the brother, "trustee of this will, in such way as he might think to the best interest of each," it was not intended that the trust should be exercised by the brother only.
WRIT OF ENTRY in the Land Court dated July 3, 1939. The case was heard by Smith, J.
F. W. Morrison, for the demandants. No argument nor brief for the tenants.
This is a writ of entry in the Land Court brought on July 3, 1939, by the alleged trustee under the will of Jeremiah Daley, by William J. Kearnan, a great-grandson of said Daley, by his guardian but in his own right, and by Hazel M. Daley and Ruth Kearnan who are grand-daughters of the said Daley, against the heirs at law and next of kin of Dennis Daley, who was a brother of the said Jeremiah and who died on January 21 1929, and of his deceased widow, Nellie M. Daley. The decision was adverse to the demandants who appealed from the decision and order of judgment. See Boston v. Lynch, 304 Mass. 272 , 274. The case was tried upon an agreed statement of all the facts See Frati v. Jannini, 226 Mass. 430; United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105 , 108-109.
It appears from the agreed facts that Jeremiah Daley died in this Commonwealth on February 10, 1898, leaving a will which was duly admitted to probate. The demandant Alice J. Daley was appointed trustee under this will on April 2, 1937. Jeremiah Daley left a widow and four minor children, all of whom are now living. He died seised in fee of an undivided half interest as tenant in common with the said Dennis Daley, in the land which is the subject matter of this controversy.
The will gave everything to the testator's brother, James, as trustee, It contained no provision for the disposition of the remainder.
The widow and four children of Jeremiah Daley
The trustee named in the will never qualified. Up to the time of his death, Jeremiah Daley lived in one of the houses on the premises in question and his widow and children continued to occupy it thereafter for about five years and paid rent to Dennis Daley. In 1904, he demanded that the widow and children vacate, and they went to live elsewhere. "The surviving copartner [the said Dennis] as shown by the ouster of the widow and children in 1904 took complete possession of . . . [the] real estate following the death of Jeremiah Daley . . . collected the rents, enjoyed the full use . . . and the earnings thereof; and the mortgages which the two brothers had placed thereon were discharged by him . . . [as of record]."
Dennis Daley died on January 21, 1929, "and the tenants are his only heirs at law and next of kin and the only heirs at law and next of kin of his widow, Nellie M. Daley, . . . deceased, and at present are collecting the rents from . . . [the] land . . . ." On November 10, 1936, the tenants in this action brought a petition in equity against the widow and four children of Jeremiah Daley for the purpose of removing a cloud on the title to the premises in question "claiming to have acquired by adverse possession all the right, title and interest in said parcels of land of the late Jeremiah Daley." (See Daley v. Daley, 300 Mass. 17 .) The tenants "do not now claim any rights" under the deed of Harry Daley, one of the children of Jeremiah Daley, that is referred to in that opinion (see page 20). (The agreed facts contain recitals of what was decided by this court in that case.)
On May 2, 1939, Alice J. Daley, "Trustee," William J. Kearnan, by his guardian, Ruth Kearnan and Hazel M. Daley made open, peaceable and unopposed entries upon the land in question, as evidenced by instruments recorded in the appropriate registry of deeds.
"The statute of limitations which bars the recovery of their life estates by the widow and children of said Jeremiah Daley which they suffered to run by remaining out of possession for more than twenty years did not become effective at the earliest until February 10, 1918, twenty years from the date of the death of said Jeremiah Daley." If the ten years grace extending the limitation period in case of minors or persons under disability, permitted by G. L. (Ter. Ed.) c. 260, Section 25, is applicable to Hazel M. Daley and Ruth Kearnan, it is conceded that they made entry and brought this writ within the time required by law, and it is conceded that William J. Kearnan made his entry and brought this writ within the time prescribed by the statute of limitations, "if applicable to him."
It was decided in Daley v. Daley, 300 Mass. 17 , that the petitioners in that case had acquired no legal title to the one half of the real estate in question, which they claimed by adverse possession, and had no standing to maintain their petition; that the will of Jeremiah Daley made no provision for the remainder after the life estate of the widow, unless it falls into the residue of the estate and is then held in trust for the benefit of the children during their lives, and no provision for the shares in which the children have beneficial life estates in the event that any child dies leaving heirs of his body. It was said, at page 23: "It would seem that the testator intended that in this latter event, the share of the deceased child should go to the heirs of the body of that child." The precise status of the remainders was not decided. But it was further said, at page 23: "it is settled that the remaindermen, having no right to possession until the death of the life tenants, or not being bound to enter until then, and the reversioner, having no right to possession until the termination of the interest on which his interest depends, are not barred by the adverse possession which has resulted against the trustee and the life tenants."
Three of the children of the testator have no children. The fourth is the father of Hazel M. Daley and Ruth Kearnan, and the grandfather of William J. Kearnan. We disregard, as did the trial judge, the statement in the agreed facts to the effect that the remaindermen or reversioners, as the case may be, on February 10, 1918, acquired a right to make an entry and recover possession of the premises by means of a writ of entry on the ground that this is a statement of law and not of fact.
The judge of the Land Court ruled that the writ in the case at bar was prematurely brought, found for the tenants and ordered judgment accordingly, but without prejudice to the right of the demandants to bring another writ when their right of entry has accrued upon the death of all the life tenants. There was no answer in abatement. See G. L. (Ter. Ed.) c. 231, Section 20.
We think it clear that the demandant trustee has no standing to maintain this writ. The right of any trustee under the will to maintain the writ is barred by the operation of the statute of limitations. Daley v. Daley, 300 Mass. 17, 22. It is unnecessary to determine the status of the demandant William J. Kearnan for if it should be determined that his mother and aunt are entitled to maintain the writ in their own right, then, by the construction of the will that has been intimated, they would be entitled to judgment for their interests in the real estate. G. L. (Ter.
Ed.) c. 237,...
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