155 Mass. 461 | Mass. | 1892
1. The demandants claim title by descent from Nathan Ayer, who died intestate in the year 1813, leaving five children, three of whom were ancestors of the original demand-ants. After action brought, two demandants died, and the widow of each came in to prosecute for her husband’s share. Subsequently, one of these widows died, and her heir came in to prosecute. At the trial, the tenant ashed a ruling that the heir of the widow of the deceased demandant could not recover. It did not appear that the original demandant died testate, or
2. The tenant requested two rulings based upon the assumption that one of the boundaries was in dispute. But the court found that the line was not in dispute, and the exceptions disclose no evidence of any such dispute, and no evidence upon the subject. Under these circumstances, the court was not prevented by any rule of law from finding that, in fact, there was no such dispute, and we cannot revise rulings based upon an assumption which the court found to be erroneous.
3. The court refused rulings based upon the theory that it must find for the tenant, unless it could find what undivided portion each demandant was entitled to recover; and that the finding and judgment must show to what undivided portion of the prem
4. In order to establish their title, it was necessary for the demandants to prove, among other things, that the locus passed by inheritance from Jacob Ayer, who died in 1789, to his' heirs. Two instruments under seal were in evidence, executed by him on May 29, 1769, in one of which he quitclaimed to certain persons and their heirs and assigns forever, “ one half of the privilege of the fishing place at the Lower Sands, so called, in Haverhill," and in the other “ one half of the fishing priviledge at ye Lower Sands, so called, in Haverhill," and it was shown that the Lower Sands included the river shore of the demanded premises. The tenant asked the court to rule that each of these instruments conveyed a fee in the premises. This request was rightly refused. The instruments are in the form of articles of agreement. The grantees in each are given the privilege of fishing at the place, but only in a certain specified manner. They respectively can use but one seine, and the grantor stipulates that but two shall be used at the whole place, and that he will allow a convenient way to pass and repass, and binds himself and his heirs in a penal sum to abide by the agreement. In the second
5. Whatever title Nathan Ayer had, he acquired by three deeds to himself, made in 1810 and 1811 by a sister, some nephews, and a niece of Jacob Ayer, of all the right that they respectively had in any estate, real or personal, belonging to the estate of Jacob Ayer. These deeds were admitted in evidence, against the tenant’s objection that they were not admissible under the pleading to prove tenancies in common. In support of his exception, the tenant argues that the demandants allege seisin as joint tenants. As the allegation of seisin is in the usual form, namely, that the demandants “ were seised of the messuage as aforesaid, with the appurtenances, in their demesne, as of fee within twenty years last past,” and does not specify a joint tenancy, there is no ground for this exception.
6. In order to show that the deeds mentioned conveyed interests in the premises, it was necessary for the demandants to prove that Jacob Ayer left no issue. Mrs. Butriek, a demand-ant, was called upon this point. It appeared that she was born in the year 1833, Jacob Ayer having died in 1789, and that she was the granddaughter of his step-daughter, her grandmother having been the daughter by a former husband of Jacob Ayer’s second wife, and having resided in his family up to his death. It also appeared that the witness was the granddaughter of Nathan Ayer, who was a cousin or grand-nephew of Jacob Ayer, and who in Jacob’s lifetime married his said step-daughter, and lived- in Jacob’s house and took care of him at the time of his death. The bill of exceptions states that this witness “testified, against the tenant’s objection, after the court ruled that her tes
7. In order to show the proportion of Jacob Ayer’s estate which passed to Nathan under the three deeds, it was material to show whether Jacob Ayer’s brother Joseph died before him, and without issue. It appeared that they were sons of Peter Ayer, who died testate in 1777, and who had seven children, and that Joseph Ayer was born in 1736. There was also evidence that Peter Ayer’s will made no mention of Joseph, while all of his other children were given something in it; and that no mention of Joseph’s death was found in the records of Haverhill, where his birth was recorded, or by an examination of headstones, and other search and inquiry for information as to his death, and as to whether he left issue. The tenant introduced no evidence upon the question, and asked a ruling that there was not sufficient evidence to show that Joseph died before the date of the deeds to Nathan. The evidence of the unsuccessful inquiry where it was probable that information could be found if Joseph had been living up to 1810, when he would have been seventy-four years of age, and the failure of his father to mention him in his will, which was evidence of the
8. The remaining exception is as to the sufficiency of the evidence that Jacob Ayer died without issue. Upon this point, also, the tenant introduced no evidence, and the court was clearly justified in finding, upon the evidence of repute in the family and of the three deeds above referred to, made in 1810 and 1811 to Nathan Ayer, that Jacob died without issue.
Exceptions overruled.