Schmaunz v. Goss
| Decision Date | 05 January 1882 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Betti Schmaunz & another v. John Goss & others |
Argued March 9, 1881
Suffolk. Petition for partition of a parcel of land in Hanover Street, Boston. The case was heard by Colt, J., upon the following agreed facts:
The petitioners and respondents derive their title under the will of George Dornhofer, who had his domicil in Nuremberg Bavaria, and who died seised of the land in question on November 8, 1874. His will was duly admitted to probate in this county, and contained the following provisions:
Magdalena Schubert, sister of the testator, died in November 1875, leaving a husband, two children, Theodore Schubert and Elise Eckstein, and nine grandchildren, the children of her son, Erhard Schubert, who died before the testator. In December, 1874, shortly after George Dornhofer's death, Magdalena Schubert made a will, which made no specific mention of the property left her by Dornhofer, and by which, subject to a life estate in her husband, she divided her property between her son Theodore and her daughter Elise.
Betti Schmaunz, the niece of the testator and the wife of John Schmaunz, is about fifty-nine years old, and has never had any children. John and Jacob Goss are both living. John has six children and Jacob five, all minors.
The premises cannot be advantageously divided, and the court may order the commissioners to make sale of the whole of the premises, and to distribute the proceeds in such manner as to make the partition just and equal.
The judge ordered judgment for partition by a sale; and reserved the case for the determination of the full court.
Judgment of partition affirmed, and the commissioners ordered to make a sale and conveyance of the whole premises, and to distribute the proceeds.
J. L. Thorndike, for the petitioners.
J. Willard, for the husband and children of Magdalena Schubert.
A. Lincoln, for John Goss and Jacob Goss.
J. M. Olmstead, for the minor children of John Goss and Jacob Goss.
C. H. Hill, for the children of Erhard Schubert.
The intention of the testator as expressed in his will must be carried out, if it can be done consistently with the law of this Commonwealth. The testator first ordains and appoints Magdalena Schubert, John Goss, Jacob Goss and Betti Schmaunz, his heirs, "to the effect that each of these four persons should take a quarter of all I leave, in equal rights and portions." These provisions, standing alone, would entitle each to one undivided quarter part in fee simple of all his real estate. An estate in fee simple is not to be cut down to a less estate by the subsequent terms of a will, unless they show a clear intention to that effect.
The testator then directs "that the portion which my sister Magdalena Schubert receives from what I leave shall fall after her death to the children of her deceased son, Erhard Schubert." This language is distinct and clear, and plainly restricts her interest in the real property devised to her to an estate for her life, with a vested remainder in fee in the children of Erhard Schubert. The words which next follow, namely, "and shall be left behind by my sister, Magdalena, to these said children of Erhard Schubert," may be construed to express the intention of the testator that she should have no power of disposition by deed or will over the estate which "shall fall after her death" to these children, which intention is carried into effect by giving them a vested remainder in fee.
The words relied on for cutting down the estates of John Goss and Jacob Goss to estates tail are too indefinite and ambiguous to justify such a construction.
The word "descendants" has not the same precise technical signification as the words "heirs of the body," and is apparently used by the testator as synonymous with children, and the words "so that if ...
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Gregg v. Bailey
...took it for life only, as otherwise he could dispose of it and thereby deprive his wife of her interest therein." In the case of Schmaunz v. Goss, 132 Mass. 141, there was given to a sister by appointing her his heir one-fourth of the testator's estate without words of limitation. At his de......
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White v. Inman, 38015
...a living person. 26 C.J.S. Descend-Descendant, p. 984. It sometimes has been held to be synonomous with the word 'children'. Schmaunz v. Goss, 1882, 132 Mass. 141. Moreover, the word 'descendants' modifies the word 'heirs'. And in the context here, as in Thompson v. Green, 1927, 145 Miss. 3......
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Phelps v. Phelps
...v. Bishop of Durham, 10 Ves. 534; Thorp v. Owen, 2 Hare, 608; Wood v. Cox, 2 Mylne & C. 684; Thayer v. Thayer, 129 Mass. 192; Schmaunz v. Goss, 132 Mass. 141. The used in this case is not imperative. Hess v. Singler, 114 Mass. 57; Sears v. Cunningham, 122 Mass. 538; Barrett v. Marsh, 126 Ma......
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Riley v. Day
... ... Stat. 1909, § ... 9037, subdiv. 7.) ... But the ... term "descendants" is sometimes used synonymously ... with "children" (Schmaunz v. Goss, 132 ... Mass. 141), and lineal descendants has been held to include ... adopted children (Warren v. Prescott, 84 Me. 483, ... 24 A. 948, ... ...