Frost v. Courtis

• Decision Date: 06 January 1897
• Citation: 167 Mass. 251,45 N.E. 687
• Parties: FROST v. COURTIS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

167 Mass. 251

45 N.E. 687

FROST

v.COURTIS et al.

Supreme Judicial Court of Massachusetts, Essex.

Jan. 6, 1897.

Report from superior court, Essex county; Henry K. Braley, Justice.

Petition by Rebecca C. Frost against Jane Courtis and others for the partition of real estate. There was a verdict for defendants, and, at the request of the parties, the case was reported to the supreme judicial court. Verdict set aside.

Francis Courtis, of Marblehead, died June 15, 1870, leaving a will, and the real estate described in the petition. He had been twice married. His first wife died about 1848. By this marriage he had one son, and no other children. This son was Francis Courtis, Jr., who died in 1845, intestate, leaving as his children Francis J. Courtis, who died after the testator, and Rebecca C. Courtis, now Rebecca C. Frost, the plaintiff. Francis J. Courtis died in 1870, without issue and unmarried, leaving the plaintiff as sole heir at law. The testator married again in December, 1849. His second wife was Jane Courtis, one of the defendants, and by this marriage he had the following children: Francis M. Courtis and Robert H. Courtis. Robert H. Courtis died before the testator, without issue and unmarried. Francis M. Courtis died in 1883, intestate, without issue and unmarried. The will of the testator provided as follows: “Second. All the rest and residue of my estate, of every name and nature, that I shall die seised of and possessed, or to which I shall be entitled at the time of my decease, I do give, devise, and bequeath to my beloved wife, Jane Courtis, and my two children, Francis M. Courtis and Robert H. Courtis, to have and to hold the same, in equal portions, to them, my said wife, Jane Courtis, and my said two children, Francis M. Courtis and Robert H. Courtis, and their heirs and assigns forever. Third. As to my two grandchildren, Rebecca C. Courtis and Francis J. Courtis, children of my deceased son Francis Courtis, they already have some little property of their own, and I leave them my best wishes, but do not feel it my duty to make any provision for them in this my last will.” Nathan R. Morse was admitted as a party defendant, claiming the real estate described in the petition. All the parties claimed under the will of Francis Courtis, Sr., as to the record title. Jane Courtis also claimed title by prescription. At the close of petitioner's case, at the request of counsel for the respondents, the court ruled that the devise in the second clause of the will was to the devisees therein named as a class, and not per capita, and that the interest devised to Robert H. Courtis did not lapse on his death before the testator's death, but went to the survivors named in the second clause.

George C. Abbott and Stephen H. Tyng, for petitioner.

H.P. Moulton and T.M. Stimpson, for respondents.

MORTON, J.

The question in this case is whether the persons named as legatees in the second clause of the will took as a class (in which event the property in suit would go to the survivor or survivors on the death of one or more members of it before the testator), or whether they took as tenants in common (in which case the share or shares of those so dying would lapse). The respondentscontend that they took as a class. The general rule is that, when real property is given, as it was here, to several persons by name, to be equally divided among them, they take as...