Kearns v. Cunniff
Decision Date | 12 January 1885 |
Citation | 138 Mass. 434 |
Parties | Patrick Kearns v. Ann Cunniff |
Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued November 12, 1884.
Suffolk.
Exceptions overruled.
R. W Shea, for the plaintiff.
T Curley, for the defendant.
Holmes, J.
This is an action of contract to recover a sum paid by the plaintiff for taxes for the year 1881, on an estate set off to the defendant for life as her half, in lieu of dower in the land of her intestate husband, Timothy Cunniff. The plaintiff owns the interest of the heirs at law, and it may be assumed that he is entitled to recover, if the defendant was bound to pay the tax, as between herself and the heirs. This will depend on whether her title to the premises in severalty vested before or after the date of the tax; for we do not read the provision in the report of the commissioners, that it should be the duty of the defendant "to pay all taxes that may be assessed," as intended to enlarge the obligation of the tenant for life in respect of the time when her duty was to begin, nor has a different construction been argued for. Perhaps we should add, that, although the defendant was seised as tenant in common before the partition, Sears v. Sears, 121 Mass. 267, there is no attempt to charge her on that ground. The action is not brought for contribution between tenants in common, but by the remainderman against the tenant for life to recover the whole tax.
The material facts are, that the defendant filed her petition for partition in the Probate Court; that commissioners were appointed; that they filed their report on February 15, 1881; and that notice to show cause was served on the defendant on April 20, 1881; all before the assessment of the tax. The date when the report was accepted and the partition confirmed was May 23, 1881. It is contended for the plaintiff that the judgment confirming the partition related back to the date of the assignment by the commissioners; and therefore that the defendant must be taken to have had her life estate in the premises before May 1, the earliest possible date of the tax. In support of this argument are cited the cases of Mansfield v. Pembroke, 5 Pick. 449, and Parker v. Parker, 17 Pick. 236.
The opinion in Mansfield v. Pembroke does little more than state the point decided, which was that actual seisin of the estate set off for dower before the confirmation of the report was sufficient for the purpose of gaining a settlement, and would be counted to make up the three years under the St. of 1793, c. 34, § 2 cl. 4. In Parker v. Parker, the heir and the widow, being the only persons interested, gave their mutual assent in writing to the assignment as soon as it was made, and it was held in a suit by the heir that the widow could justify entering and taking the profits before the report was confirmed. We agree to both decisions, but we cannot accept as a general proposition the statement repeated in the later from the earlier opinion, that the judgment related back to the assignment. Indeed, we do not understand that it was intended to be laid down without qualification, as the assent of the heir was also strongly insisted upon. See Conant v. Little, 1 Pick. 189. Littleton was quoted to the effect that, where the certainty appeareth what lands the wife shall have for her dower, the wife may enter without any new assignment. Co. Lit. 37 a, § 43. But the cases put by Lord Coke as illustrations are where specific lands were assigned ad ostium ecclesioe. See Lit. §§ 39, 40; Co. Lit. 34 b; Hildreth v. Thompson, 16 Mass. 191, 193. The analogy most relied on was, that, But it seems to us that the analogy...
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