Brown v. Brown
95 N.E. 796
Mass.
1911
Check Treatment
Sheldon, J.

This appeal is without merit.

1. No relief was given against the defendant William F. Brown, but he was allowed his costs. As to him, the bill was in effect dismissed, and he has no ground of complaint.

2. The plaintiff can maintain the suit. All the heirs of the original owner and the executrix of his will are made parties. In her personal capacity the executrix is the sole defendant in interest. It is settled by our decisions that the deed of an insane person is ineffectual to convey a title to land which shall be good against the grantor himself or against his heirs or devisees, unless it is confirmed by the grantor, when of sound mind, or by his guardian, or after his death by his heirs or devisees. Valpey v. Rea, 130 Mass. 384, and cases cited. Brigham v. Fayerweather, 144 Mass. 48. Busiere v. Reilly, 189 Mass. 518. As to undevised property, the rights of heirs are not affected by a will. In such a case, if the deed has been neither ratified nor avoided in the lifetime of the grantor, his heirs may avoid it after his decease; if the invalid deed was made to one of his heirs, the other heirs or any one or more of them according to their respective interests may avoid it in like manner. Parker v. Simpson, 180 Mass. 334. Caverly v. Simpson, 132 Mass. 462. Sunter v. Sunter, 190 Mass. 449. See Billings v. Mann, 156 Mass. 203. The executor of his will or the administrator of his estate has no power to ratify such a deed to the prejudice of his heirs; Wilcox v. Forbes, 173 Mass. 63; much less can he do so to the prejudice of the other heirs if, being himself an heir, he is also the wrongful grantee named in the deed. This is not the case of the ratification of a contract relating to personal property by which an ordinary indebtedness or liability is created, to be enforced primarily against the executor himself, and against the heirs only under the provisions of R. L. c. 141, § 26, as was the case in Bullard v. Moor, 158 Mass. 418. See Forbes v. Douglass, 175 Mass. 191.

3. No question of ratification by the grantor arises in this case, for his incapacity not only continued but increased continuously until his decease. Gibson v. Soper, 6 Gray, 279, 281.

4. The probate of the will merely shows that the testator was *395of sufficiently sound mind to make the will; it is not conclusive evidence on the issue in this case. Gibson v. Soper, 6 Gray, 279. Sly v. Hunt, 159 Mass. 151.

5. None of the master’s findings are shown to have been plainly wrong, and we find no error in any of his reported rulings. See Long v. Athol, 196 Mass. 497, 508; American Circular Loom Co. v. Wilson, 198 Mass. 182, 203; Atherton v. Emerson, 199 Mass. 199, 211. It was for him to fix the limits of time for evidence of the grantor’s mental condition. While he might have made those limits narrower, still it must be remembered that the possibility of a ratification of the deeds was to be passed upon, and we cannot say that he went too far. See Hardy v. Martin, 200 Mass. 548; Jenkins v. Weston, 200 Mass. 488; Howes v. Colburn, 165 Mass. 385; McCoy v. Jordan, 184 Mass. 575. The hypothetical question put to the experts was needlessly long and complicated, and might have been excluded on that ground; but all the assumed facts were found by the master to be proved, and there was no error in law in admitting the question.

6. The defendants do not deny that the plaintiff, upon avoidance of the deeds, is entitled to a share of the net income received from the rented estates; Robinson v. Robinson, 173 Mass. 233, 239; but they contend that this is not so as to the Vine Street property, because that has been occupied by themselves. This is on the ground that bare occupation by one tenant in common creates no liability to his co-tenants. Badger v. Holmes, 6 Gray, 118. Sisson v. Tate, 114 Mass. 497, 501. Kirchgassner v. Rodick, 170 Mass. 543, 545. Carroll v. Carroll, 188 Mass. 558. But this does not apply where one co-tenant has ousted his co-tenants, and compelled them to resort to the courts to establish their rights. That is this case. Silloway v. Brown, 12 Allen, 30, 37, 38, and cases there cited. The female defendant’s liability is the same whether she occupied the property in person or received rent therefor from others, just as in McIntire v. Mower, 204 Mass. 233, 237, 238.

7. As the defendants say in their brief that they waive none of the questions raised on the record, we have examined everything so presented; and we are clearly of opinion that there has been no error prejudicial to either defendant.

*396The final decree must be modified by charging each defendant with the costs of this appeal, and by charging the female defendant with interest upon the sum ordered to be paid by her from and after the date of that decree. R. L. c. 177, § 8. So modified, that decree must be affirmed.

iSo -ordered.