163 Mass. 270 | Mass. | 1895
This is a petition for the construction of the will of Jane Manning. The petitioner claims, under the fourth article of the will, title in fee simple to the whole of certain real estate in Somerville, Timothy Manning, the husband of the testatrix, having died on August 7, 1893.
We are of opinion that this section of the Public Statutes must be confined to matters and questions necessary to be determined in the administration of estates under wills. Under this petition we cannot give to the petitioner any effective remedy to recover possession of the real estate, or of any part of it to which we may think she is entitled. The position of the parties is much the same as if they claimed title under a deed the construction of which is in doubt. The true remedy of the petitioner is by writ of entry, in the trial of which it would be necessary to determine the meaning of this article of the will.
But as the parties have fully argued the somewhat difficult question of construction to be given to the clause of the will under which they both claim title, and as they are all the parties interested in the question, and both desire our opinion on it, we have considered it, and under the circumstances think it best to say that in our opinion the petitioner took only one undivided third part of the real estate under the fourth article of the will, and that Annie M. Horrigan and Timothy Horrigan each took an undivided third part. The petition must be dismissed, as not stating a case in which the petitioner can ask the court for instructions upon the construction to be given to a will.
Petition dismissed.
Át the time of her death the testatrix was the owner in fee simple of two houses, with the land thereto belonging, situated on Somerville Avenue in Somerville, one numbered 90 and 92 and one 94 in the numbering of that avenue.
By her said will she devised to her husband, Timothy Manning, for life, both of the houses and land, excepting one tenement in the house No. 94 Somerville Avenue, with the privileges and appurtenances thereto belonging, then occupied by Mary E. C. Smyth.
The fourth section of the will provided as follows : “ On the decease of my said husband I give, bequeath, and devise the said house and land numbered 90 and 92 Somerville Avenue, and the portion of said house and land numbered 94 Somerville Avenue, which I have given to him, to my said sister Elizabeth Austin, and in case of her death before the death of my said husband, then to her heirs at law, and to my niece Annie M. Horrigan and my nephew Timothy Horrigan, to have and to hold the same to them equally and as tenants in common to them and to their heirs and assigns forever.”