300 Mass. 17 | Mass. | 1938
This is a petition in equity brought in the Land Court to remove clouds on the alleged titles to real estate. The evidence is not reported but the judge made findings and rulings and a final decree was entered in which, after the relevant references to the parties and the land involved, it is recited that “said petitioners hold said premises as against any lawful claim of the respondents or any of them, and that none of said respondents have any legal claim to any title in and to either of the parcels of land above referred to.” The respondents appealed from this decree.
The petitioners are the only heirs at law of Dennis Daley, deceased, and the respondents are the only heirs at law of Jeremiah Daley, deceased. Dennis and Jeremiah Daley, who were brothers and partners, conducted a general store in Uxbridge. On April 25, 1889, they purchased a parcel of real estate known as the “Tucker Place,” the consideration being $3,000. Title was taken in the names of Dennis Daley and “Jerry” Daley; $500 was paid in cash, and a mortgage for $2,500, signed and executed by them and their respective wives, was given to the grantors. The $500 was paid out of the “general store fund” and nothing more was paid on the principal of the mortgage during the existence of the partnership. Prior to this purchase the partners rented and occupied adjoining apartments in the “Tucker Place,” which was a two family house, and the rentals were paid out of “the general store” in cash. On August 24, 1896, the partners purchased another parcel of real estate, known as the “Post Office Block,” for $5,000, taking title in their names, Jeremiah Daley and Dennis Daley. They gave the grantors a mortgage for the entire purchase price and nothing was paid on the principal of this mortgage during the. existence of the partnership.
Dennis Daley declined to act as executor, and the attorney who had done legal work for the partnership was appointed administrator with the will annexed. ■ As- the result of the inventory of the partnership assets which . the administrator took, he found that -the amount due. .the estate from Dennis Daley was $3,329.36. This sum .included one half of the value of the equity of both parcels of real estate, which was fixed at $500. As administrator, he took a note from the surviving partner for the amount found due, which was paid principally in sums charged for rent of the tenement, which the widow and children of Jeremiah Daley continued to occupy, and for goods purchased by them at the store. This note was paid in full on January 1, 1906.
After this note • was paid, Dennis Daley, the surviving partner, “assumed- ownership and control of said parcels of real estate.” He made repairs, paid all taxes, insured the properties, paid the mortgage interest and eventually paid the mortgage principals and received discharges. .The widow and children of Jeremiah Daley continued to .live
The trustee named in the will of Jeremiah Daley never qualified as such but, after this proceeding was brought, one of the defendants, Alice J. Daley, was appointed as such trustee and permitted to intervene in her official capacity in this suit. No other trustee was ever appointed by the Probate Court.
The assets of the partnership exceeded its liabilities and the two parcels of real estate were not needed to pay claims against the partnership. The affairs of the partnership, in regard to its personal property, bills receivable and payable, were adjusted and settled by the administrator with the will annexed of Jeremiah Daley and the surviving partner, both acting fairly, openly and in good faith. “There was nothing fiduciary between the surviving partner and the dead partner’s representative or his trustee or his devisees relative to the real estate owned by the partners after the partnership affairs had been settled.” In conclusion the judge found that the petitioners “have acquired a title by adverse possession to the undivided one-half part of each
The Land Court has original jurisdiction of suits in equity to quiet title or establish the title to land or to remove a cloud from the title thereto. G. L. (Ter. Ed.) c. 185, § 1 (k). A petition to remove a cloud from the title to land affected cannot be maintained unless both actual possession and the legal title are united in the petitioner. If a disseisin has continued for the full statutory period, not only is any right of entry barred but by the operation of the statute of limitations the time within which a real action must be brought has passed and the estate has vested in the disseisor as effectually as if originally conveyed to him. First Baptist Church of Sharon v. Harper, 191 Mass. 196, 208. Solis v. Williams, 205 Mass. 350, 354. See Proprietors of Jeffries Neck Pasture v. Ipswich, 153 Mass. 42. Unless the petitioners have acquired title by adverse possession to the one-half part of the real estate standing in the name of Jeremiah Daley, the petition must fail.
The will of Jeremiah Daley devised all his real estate to a trustee who never qualified. Title to real estate devised by will passes directly, on probate of the will, to the devisee and relates back to the instant of the death of the testator. Lobdell v. Hayes, 12 Gray, 236. Drury v. Natick, 10 Allen, 169, 182. Busiere v. Reilly, 189 Mass. 518. One named as trustee of real estate in a testamentary trust, being a devisee of the legal title, obtains that title upon the probate of the will. He becomes a trustee by virtue of his being so named in the will. Tainter v. Clark, 13 Met. 220, 227. National Webster Bank v. Eldridge, 115 Mass. 424, 428. Parker v. Sears, 117 Mass. 513, 522. Ellis v. Hunt, 228 Mass. 39, 44. Monk v. Everett, 277 Mass. 65, 70. See Guaranty Trust Co., petitioner, 248 Mass. 319. The fact that the named trustee has not qualified by giving such bond as may be required does not change this. See Coates
If there is an adverse possession as to a trustee, and there is no fraud or concealment, and the cestui que trust is under no disability, the possession must be regarded as adverse both to the trustee and to the cestui que trust, and the .time which would bar the legal right is equally effectual to bar the equitable right. See G. L. (Ter. Ed.) c. 260, § 25; Attorney General v. Federal Street Meeting-house, 3 Gray, 1, 62; Merriam v. Hassam, 14 Allen, 516, 522, 523; Taft v. Decker, 182 Mass. 106, 110. The children of the testator were minors at the time of his death, and consequently under a disability. But even if the youngest child was but á day old, such child is now barred. The ten year grace permitted by G. L. (Ter. Ed.) c. 260, § 25, in which to bring an action, would expire at the latest in 1929.
But a difficulty is presented by the terms of the will of Jeremiah Daley, which made no express provision for the ultimate .disposition of his real estate. The trust which was created by that instrument was for the lives of the widow
We do not think that it is necessary to decide the precise status of the remainders after the life estates resulting from this construction of the will, that is, whether contingent and in fee tail, with a reversion, or contingent and in fee simple. See White v. Woodberry, 9 Pick. 136; Corbin v. Healy, 20 Pick. 514, 515; Sims v. Pierce, 157 Mass. 52, 54; Sands v. Old Colony Trust Co. 195 Mass. 575, 578; Merchants National Bank of New Bedford v. Church, 285 Mass. 217, 222; G. L. (Ter. Ed.) c. 184, § 5. For whatever may be the nature of the remainder, it is settled that the remaindermen, having no right to possession until the death of the life tenants, or not being bound to enter until then, and the reversioner, having no right to possession until the termination of the interest on which his interest depends, are not barred by the adverse possession which has resulted against the trustee and the life tenants. Wells v. Prince, 9 Mass. 508. Tilson v. Thompson, 10 Pick. 359. Miller v. Ewing, 6 Cush. 34, 41. Isbell v. Greylock Mills,
The position of the petitioners is that they are the owners of the entire parcels involved. If one is in possession of real estate claiming the whole interest and by adverse possession he acquires any estate, it must be a fee simple. Commonwealth v. Dudley, 10 Mass. 403, 408. On this record the petitioners have acquired no legal title to that part of the real estate which they claim by adverse possession and accordingly have no standing to maintain their petition. The final decree must be reversed and a final decree is to be entered dismissing the petition, with costs to the respondents.
Ordered accordingly.