185 Mass. 560 | Mass. | 1904
This is a writ of entry to recover a certain parcel of land, with the buildings thereon, situated in Cambridge, to which the demandants claim title as heirs at law of one Maria J. Day. The tenant is a brother of the demandants and is in possession and claims title to the premises as devisee under the will of Maria J. Day, which has been duly proved and allowed. The demandants and the tenant are nephews and nieces of the testatrix and her heirs at law. The sole question is whether the tenant took an estate in fee simple or upon condition. The Superior Court ruled that he took an estate in fee simple, and the case is here on exceptions by the demandants to this ruling.
The clause under which the tenant claims title is as follows: “ Second. All the rest residue and remainder of my property both real, personal and mixed, I give, devise and bequeath to Francis J. Brennan to him and his heirs forever, provided that he shall take care of me and look after me while I live.” The clause is well drawn and aptly describes an estate upon condi
The fact that the tenant had no knowledge of the provisions of the will until after the death of the testatrix is immaterial,
The case is here on exceptions. But the exceptions conclude as follows: “ It was agreed by the counsel of the parties, at the trial, that if the ruling of the court was right, judgment was to be entered on the verdict, and if wrong, judgment was to be entered for the demandants; damages for the rents and profits to be assessed at the rate of twenty-five dollars per month from the thirty-first day of July, 1901, or such judgment was to be entered as law and justice require.” For reasons already given we think that the ruling was wrong. But since.the tenant is an heir at law we do not see how an unqualified judgment for the demand-ants can be entered, as that would have the effect to deprive him of his interest as heir at law. But the exceptions conclude, as already observed, with the stipulation that “ such judgment was to be entered as law and justice require.” It is stated in the exceptions that the demandants and the tenant are brothers and sisters and the next of kin of the testatrix. It is not stated that they are all of the next of bin, though that perhaps might be implied. Assuming that the demandants and the tenant are all of the next of kin, then the demandants would be entitled to ten undivided eleventh parts of the premises and of the rents and profits, and judgment should be entered accordingly. If it should appear that we are wrong in our assumption, application
Judgment for the demandants for ten undivided eleventh parts of the premises and of the rents and profits.