Lavery v. Egan
| Decision Date | 10 January 1887 |
| Citation | 143 Mass. 389,9 N.E. 747 |
| Parties | LAVERY and another v. EGAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
H.J. Boardman and S.H. Tyng, for tenant.
The tenant contends that the devise is void. "It is a well-settled rule of real property that a limitation to an heir in a devise is void, and that the heir cannot be a purchaser." Co.Litt. 226; Powell, Dev. 427, 430; 6 Cruise, Dig. (Greenl.Ed.) 151; 1 Jarm. Wills, 67; Ellis v. Page, 7 Cush. 161, 163; Sears v. Russell, 8 Gray, 86, 93; Sedgwick v. Minot, 6 Allen, 171; Pierce v. Smith, 13 Allen, 42; 2 Washb. Real Prop. (3d Ed.) 526, 558, 562. That if the devise be not void for the reasons stated, the devisee took the fee because of the use of the words "heirs and assigns" in the devise. Bacon v. Woodward, 12 Gray, 376, 381, 382; Brown v. Merrill, 131 Mass. 324, 325; Kelley v Meins, 135 Mass. 231, 234. It is true the words "for and during their respective lives" are used but this being repugnant to the subsequent words, "heirs and assigns," the latter should prevail. Dawes v Swan, 4 Mass. 208, 215. This construction is also in accordance with the principle that "it is contrary to the presumed intent of the testator to narrow the benefit intended for the first object of his bounty for the benefit of an object more remote." Lovering v. Minot, 9 Cush. 151, 157; Damrell v. Hartt, 137 Mass. 218, 220.
The provisions of Gen.St. c. 89, § 12, Pub.St. c. 126, § 4, do not apply in this case, because the grandchildren took, as above stated, by descent. "Statutes are not to be construed as taking away a common-law right, unless the intention is manifest." Melody v. Reab, 4 Mass. 473. Being in derogation of the common law, this statute should be strictly construed. It cannot, therefore, have the effect of taking from the heirs of the testatrix their "worthier and better title" by descent, and substituting therefor an inferior title under the devise. The cases of Bowers v. Porter, 4 Pick. 198, and Putnam v. Gleason, 99 Mass. 454, do not militate against this position. See Ellis v. Page, supra. If the devise be valid, this will does not, in the terms of the statute, devise the land "to a person for his life, and after his death to his heirs in fee," or by words to that effect; for the use of the word "assigns" entirely changes the effect. See Weld v. Williams, 13 Metc. 486, 496, and cases cited above.
If the heirs of the testatrix took the fee in the demanded premises, whether by descent or by the devise, the tenant, as the surviving husband of the deceased granddaughter, is entitled to her undivided fourth part in fee, having had by him children born alive, having died intestate, and leaving no issue living, and each fourth part not exceeding $5,000 in value. St.1880, c. 211, § 1; Pub.St. c. 124, § 1.
J.F. Cronan, for demandant.
Agreed facts waive all matters of pleading, so that the declaration, general issue, and disclaimer may be laid aside, and such judgment rendered, regardless of the pleadings, as the agreed facts will warrant. Esty v. Currier, 98 Mass. 500; West Roxbury v. Minot, 114 Mass. 546. The agreed facts show that plaintiffs took under said will, as tenants in common, an estate in the premises for their respective lives, and that, at their decease, respectively, their respective heirs take an estate in fee-simple, by purchase under said will, and that the heirs of said Susan took no interest in the premises by descent. Gen.St. c. 89, §§ 12, 13; Pub.St. c. 126, §§ 4, 5; Putnam v. Gleason, 99 Mass. 454; Bowers v. Porter, 4 Pick. 198. The estate held by Susan M. for life did not vest in her heirs till her decease, for no one is heir of the living. Putnam v. Gleason, ubi supra; Bl.Comm. c. 11, p. 170. The defendant, late husband of said Susan, took nothing in the premises under said will, for he was not an heir of said Susan. Gen.St. c. 90, § 19; Pub.St. c. 125, § 1; Id. c. 124, § 1; Lord v. Bourne, 63 Me. 379. As each of the plaintiffs, by the agreed facts, had, at the date of plaintiffs' writ, an estate for life in an undivided fourth part of the premises, and an estate in fee-simple in one undivided third part of the undivided fourth part which Susan M. held for her life, judgment should be entered for plaintiffs for all demanded premises and costs. Pub.St. c. 193, § 10; Id. c. 173, § 7; Wells v. Osborn, 2 Mass. 446; Richards v. Randall, 4 Gray, 53; Cole v. Eastham, 124 Mass. 307; Kelley v. Meins, 135 Mass. 330. Or else the judgment should be entered that plaintiffs recover costs, and each plaintiff recover an undivided third part of the demanded premises, for the judgment should be co-extensive with and conform to the title proved. Pub.St. c. 193, § 10; Pub.St. c. 173, §§ 4, 5; Backus v. Chapman, 111 Mass. 386; Butrick v. Tilton, 141 Mass. 93; S.C. 6 N.E. 563; Webster v. Vandeventer, 6 Gray, 428.
By the seventh article of the will, as we construe it, the four grandchildren took, as tenants in common, life-estates in the real property of the testatrix, with contingent remainders to their heirs. Pub.St. c. 120, § 4, Gen.St. c. 89, § 3; Pub.St. c. 126, § 4; Gen.St. c. 89, § 12; Putnam v. Gleason, 99 Mass. 454. On the decease of Susan M. Lavery, one undivided quarter of the real property vested by the will in the persons who were then her heirs. These heirs do not take by descent from Susan, but under the will, as the persons designated to take on the termination of her life-estate, and the remainder is contingent, because, until her death, it cannot be determined who her heirs will be. The words of the will, "to their respective heirs, executors, administrators, and assigns," are to be construed as if they read, "to their respective heirs, and their executors, administrators, and assigns;" and the words, "executors, administrators, and assigns" were probably added to make it certain that the heirs took a fee in the real estate, and took the personal property absolutely. The same conclusion is reached if these words are disregarded. Without them the intent is clear that the grandchildren should take only a life-estate, and that, on their decease, respectively, the property should go to their heirs; and this intent is not to be defeated by the addition of formal words like these, when, in the connection in which they are used, their significance is uncertain.
Susan M. Lavery died December 1, 1884, leaving no issue, nor father or mother, but leaving a husband, who is the tenant in this action, and leaving three brothers who are the demandants. These demandants are the remaining grandchildren of the testatrix named in the seventh article of the will, and by the will they took a life-estate in three-quarters of the land demanded, and, if they are the sole heirs of Susan, they took, on her death, an estate in fee-simple in the remaining quarter. This quarter is of less value than $5,000. Susan left no estate, and the claim of the tenant is that, under St.1880, c. 211, § 1; Pub.St. c. 124, § 1,--he would have taken as heir of Susan an estate in fee in this one-quarter, if Susan had died seized of it, and intestate, and that, on her death, he took the same estate under the will, as he was the only person who could be called her heir to this property.
The word "heir" of itself imports succession to property ab intestato. Blackstone's definition is this "An heir, therefore, is he upon whom the law casts the estate immediately on the death of his ancestor." 2 Comm. 201. But in defending the ancient rule that the inheritance shall never descend, he says: "We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi only." Id. 211. After the rule was adopted that inheritance might descend, the ancestor was the person from whom the inheritance devolved upon the heir, and a child might be the ancestor of his parent. The earliest rules for the descent of real property upon the death of the owner of an inheritable estate were established by the customary law; but the common law has been largely changed in England by statute, and, in this commonwealth, the descent of real estates held in fee-simple has, from very early times, been regulated by statute. It is the law, whether customary or statutory, which determines who shall inherit real property when the owner dies intestate; and the law alone decides whether the word "heirs" shall include relations or connections by affinity, as well as relations by consanguinity. An heir, therefore, is he upon whom the law casts an estate of inheritance immediately on the death of the owner. Dower and an estate by the curtesy were initiate during the life, and became consummate on the death, of the husband or...
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