Watson v. Watson

• Decision Date: 12 January 1880
• Citation: 128 Mass. 152
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James M. Watson & others v. Horace H. Watson

128 Mass. 152

James M. Watson & others v. Horace H. Watson

Supreme Court of Massachusetts

January 12, 1880

Argued October 15, 1878

Plymouth. Petition by James M. Watson, Edward W. Watson and Albert M. Watson, for the partition of certain lands on Clark's Island in the harbor of Plymouth, formerly owned by the grandfather of the petitioners, who was the great-grandfather of the respondent, and who died intestate and which by various conveyances had become the common and undivided property of the petitioners and of an uncle of theirs, in the following proportions: James, six forty-eighths; Edward, seven forty-eighths; Albert, six forty-eighths; and the uncle, twenty-nine forty-eighths; and so continued at the death of the uncle, who left a will which was duly admitted to probate on October 9, 1876, and contained the following provisions:

"8. I give to may nephew, Edward W. Watson, the sum of fifty dollars, and my old easy-chair.

"9. I give to my nephew, James M. Watson, my boat called the Albert Mortimer, and her outfit. Also one bedstead, one mattress, two pillows, two sheets, two blankets, one large silver spoon and wooden chairs, one cane-bottom roundabout, the furniture which belonged to his aunt, Eliza, six hens and a cockerel, and one cow called the Marshfield cow. I also give, devise and bequeath to the said James M. Watson my share in the salt-marsh lot at the Gurnet, and all my right, title and interest in and to two acres and twenty rods of land on said Clark's Island, lying in the cedar field, so called, and adjoining his homestead; to have and to hold the same to him, his heirs and assigns, in fee simple forever.

"10. I give, devise and bequeath to my great-nephew, Horace Herbert Watson, grandson of my brother, John Watson, ten acres of pasture land on said Clark's Island, on the northeast side of the cedar field, and adjoining the same; the lines thereof to run parallel with said cedar field, to be fenced by him at his own expense; to have and to hold the same to the said Horace Herbert Watson, his heirs and assigns absolutely and in fee simple forever. I also give to said Horace Herbert one large silver spoon.

"11. I give to my nephew, Albert Mortimer Watson, all my farming utensils, live stock, and crockery ware, not hereinbefore disposed of, absolutely and for his own use."

"13. I give, devise and bequeath to my said nephew, Albert Mortimer Watson, the elder of that name, the use, income and improvement of all my real estate situated on said Clark's Island, saving and excepting herefrom the parcels of land herein before devised to James M. Watson and Horace Herbert Watson by articles 9 and 10 respectively; to have and to hold the same for and during the term of his natural life," with remainder to his son, Albert M. Watson, Jr., in fee.

The petitioner Albert was also appointed executor of the will, and took out letters testamentary, but has settled no account in the Probate Court.

All the petitioners received the legacies, and James entered upon the lands devised to him, under the will, except that Edward did not receive the chair bequeathed to him; and at the time of receiving the legacies, and entering upon the lands, they were aware of the provisions of the will, but were ignorant of the alleged rule of law that, if any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will; and they received the legacies, and entered upon the lands, in ignorance of the law, and without consulting counsel.

The petitioners were first informed of that rule of law, about the middle of November 1877, by their counsel, after an interview between him and the counsel for the respondent, by whom he was informed that he contended that such was the law; whereupon Edward, to whom no land was devised under said will, immediately returned the legacy received by him to the executor, with this statement in writing and signed: "I have just been informed that I cannot claim rights as a tenant in common of the land claimed by Horace H. Watson, if I conclude to take the legacy of fifty dollars. I therefore notify you of my election not to take the legacy."

In the petition, the petitioners respectively claimed the shares belonging to them at the death of their uncle as above stated, and Albert also claimed a life estate in the share belonging to the uncle, and it was alleged that Albert's son was entitled to the remainder in this share. Notice was issued to Albert's son, and a guardian ad litem appointed for him; and to Horace H. Watson, who filed an answer, denying that the lands described in the petition were owned in common by the petitioners, and alleging that ten acres thereof, being those described in the tenth article of the will, were owned by him in severalty.

At February term 1878, the case was submitted by all the parties to the judgment of the Superior Court, upon the facts above stated, with this memorandum above the signature of the petitioners' attorney: "The petitioners do not hereby waive the right hereafter to elect, upon a decision of the law, if they should desire." Allen J. gave judgment for the respondent Horace H. Watson as to the parcel claimed in his answer; and judgment for the petitioners for partition of the residue of the land. The petitioners appealed to this court.

C. G. Davis, for the petitioners.

A. Mason, for the respondent.

Gray C. J. Ames, Endicott & Soule, JJ., absent.

OPINION

Gray C. J.

The principle on which the respondent relies was thus stated by Chief Justice Shaw: "It is now a well settled rule in equity, that, if any person shall take any beneficial interest under a will, he shall he held thereby to confirm and ratify every other part of the will, or, in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat or in any way prevent the full effect and operation of every part of the will." Hyde v. Baldwin , 17 Pick. 303, 308.

In this Commonwealth, it has been decided, in accordance with the opinions of Lord Mansfield, Lord Loughborough and Lord Redesdale, that the rule holds good at law as well as in equity. Smith v. Smith, 14 Gray 532. Brown v. Brown, 108 Mass. 386. Hapgood v. Houghton, 22 Pick. 480, 483. Doe v. Cavendish, 3 Doug. 48, 55; S. C. 4 T. R. 741, 743, note. Wilson v. Townshend, 2 Ves. Jr. 693, 696. Birmingham v. Kirwan, 2 Sch. & Lef. 444, 450. Were it not so, there were few cases in which it could have been enforced at all before the St. of 1857, c. 214, conferred upon this court full chancery jurisdiction.

But the doctrine, whether applied in practice on the common law or on the equity side of the court, depends not upon technical rules, but upon principles of equity and justice, and upon actual intention. An...