Cooper v. Monroe
237 Mass. 192
Mass.
1921
Check Treatment
Crosby, J.

This is an appeal from a final decree confirming a master’s report and dismissing the bill. The bill was brought by Frederick F. Read who has since deceased, thereafter his execu*196trix was substituted as plaintiff and upon her death the administratrix of his estate with the will annexed was admitted as a party plaintiff.

The master’s report recites that he met the parties, “heard their evidence, examined their papers, documents, and vouchers, and now makers] report of . . . [his] findings to the court.’’ He further states in the report: “The case was referred to me after it had been fully heard by a former master. Pursuant to the directions of the court I have considered the evidence introduced before that master in making my report, a complete transcript of the testimony and all the exhibits having been furnished to me.”

Frederick F. Read, the original plaintiff, (who will hereafter be referred to as the plaintiff) was the grandson of Josiah P. C. Marshall and his first wife. The master found that William Marshall, the great-grandfather of the plaintiff, died intestate in the year 1860, leaving a widow, Susan Marshall; and as his only heirs at law his four children, — William F., John W. S.; Josiah P. C., and Susan G.; that Susan Marshall, the widow, died in 1869; that William F. Marshall died in 1888, and John W. S. Marshall died in 1893; that both were unmarried and without ¡issue; that Susan G. Marshall married Austin J. Coolidge whom she survived, and died without issue in 1895; that Josiah P. C. Marshall, by his first wife,' had a daughter, Catherine Cooke Marshall, who was living at the time of the death of William Marshall in 1860; that she married William Read, and her son, the plaintiff, was born in 1873; she died in 1877. Josiah P. C. Marshall, after the death of his first wife, married Elizabeth Taylor. He died in 1915; his wife died in 1916 leaving no issue; the plaintiff died in 1917.

The bill in substance alleges, and the plaintiff contends, that the four children of William Marshall each took from him the ' real estate of which he died seised upon a “condition” or “trust” that no part of it should be alienated during the lifetime of any of the children and upon the death of the survivor of them it was to be vested in the heirs of William Marshall then living. It is ’ also the contention of the plaintiff that, under the terms of the condition or trust, upon the decease of Josiah P. C. Marshall, the last surviving child, he became entitled to the remainder and the fee in all the realty of William Marshall which had originally *197vested in the four children in 1860 or the proceeds from the sale of such real estate, or other land bought with such proceeds. The bill seeks to establish a trust in the various parcels of real estate therein described and the plaintiff’s title to the fee in the remainder thereof.

We do not deem it necessary to refer in detail to the many allegations of the bill or to the various parcels of real estate therein described, as the allegation that all the real estate left by William Marshall was subject to a “condition” or “trust” lies at the foundation of the plaintiff’s claim. - - q

It does not clearly appear from the bill in what manner the alleged condition or trust was created, none is alleged to have been established by William Marshall by any instrument, unless it is to be inferred that it was created by will. But the master found that William Marshall died intestate. He states that: "At the hearing the plaintiff claimed that a writing alleged to be a will of William Marshall, which was never probated, should be' admitted in evidence as proof of the ‘condition’ or ‘trust’ or ‘life estate’ in which he asserted the children of William Marshall took his real estate. This paper was marked for identification,, and was excluded by the master.”

The finding that the alleged will was never probated makes it clear that the plaintiff could obtain no rights thereunder, and it was properly excluded. The plaintiff in his brief, however, contends that he offered at the hearing before the first master, the record of the probate of the will and that it was excluded subject to the plaintiff’s exception; a careful examination of the voluminous record fails to show that such evidence was offered; neither the alleged will nor the record of its probate, if there is such a record, is before us.

It.follows, as the evidence is not before us, that the finding that William Marshall died intéstate, and the further finding that “no condition of any kind was imposed upon the real estate acquired from said William Marshall by his children in 1860, but that upon his death they took the same by descent in fee, and the plaintiff, upon the decease of Josiah P. C. Marshall in 1915, took no property as the heir of William Marshall” is conclusive, and as the i plaintiff has failed to prove the condition or trust as alleged, he cannot prevail.

*198"Josiah P. C. Marshall left a will in which he gave his wife, Elizabeth T. Marshall, a life interest in his real estate with remainder to the plaintiff in fee to which the plaintiff became entitled. Before this will was made, the testator conveyed two parcels of land by mesne conveyance through the defendant Monroe to his wife. The first of these conveyances was made in 1891 and is claimed by the plaintiff to be invalid because the deed to Monroe was never delivered by the grantor. The second was made in 1896 and is alleged to have been invalid because the deed to the defendant Monroe, through whom the title passed to Mrs. Marshall, was acknowledged before the grantee. A third parcel was sold by the testator a few days before his death in 1915; the plaintiff contends that this conveyance was invalid on "the ground that, when it was executed, the grantor was of unsound mind. The master found that the two deeds executed in 1891 were delivered and recorded on November 6, 1891; that by a mistake the certificate of the justice of the peace before whom the first deed was acknowledged was dated October 6, 1891, although he finds that the deed was in fact acknowledged by the grantor on November 6, 1891; that of the deeds given in 1896, the one from the testator to Monroe was acknowledged before the latter, who on the same day made a certificate of acknowledgment as justice of the peace; and that both deeds were recorded in the registry of deeds. The circumstance that the acknowledgment of the deed to Monroe was made before him did not render the conveyance void. It is well settled that a deed duly signed, sealed and delivered is sufficient as between the original parties to it to transfer the whole title of the grantor to the grantee, although the instrument is not acknowledged nor recorded. Palmer v. Paine, 9 Gray, 56. Dole v. Thurlow, 12 Met. 157. Earle v. Fiske, 103 Mass. 491. Toupin v. Peabody, 162 Mass. 473. Hayden v. Peirce, 165 Mass. 359. As to the parcel of land sold by Josiah P. C. Marshall in 1915, a few days before his death, the master found that when the deed was executed the grantor was of sound mind.

The above findings dispose of the plaintiff’s contentions that the deeds are invalid. The many allegations of the bill and the master’s findings with reference thereto, have become immaterial by reason of the finding that no condition or trust in favor of the *199plaintiff was shown to have been established. It, therefore, is unnecessary further to consider them.

No appeal was taken to the interlocutory decree overruling the plaintiff’s exceptions to,the master’s report or to the interlocutory decree denying the motion to recommit the report. The case is before us only on an appeal from the final decree confirming the report and dismissing the bill, and, as no error of law appears, the entry must be

Decree affirmed.