308 Mass. 293 | Mass. | 1941
This is a writ of entry in the Land Court brought on July 3, 1939, by the alleged trustee under the will of Jeremiah Daley, by William J. Kearnan, a great-grandson of said Daley, by his guardian but in his own right, and by Hazel M. Daley and Ruth Kearnan who are granddaughters of the said Daley, against the heirs at law and next of kin of Dennis Daley, who was a brother of the said Jeremiah and who died on January 21, 1929, and of his deceased widow, Nellie M. Daley. The decision was adverse to the demandants who appealed from the decision and order of judgment. See Boston v. Lynch, 304 Mass. 272, 274. The case was tried upon an agreed statement of all the facts “material to the issues . . . [which"] may be considered by the court as established. . . . Inferences, deductions and conclusions of fact may be drawn from the agreed facts . . . and the provision of G. L. c. 260, §§ 21-31, inclusive, are by reference incorporated in and made a part hereof.” See Frati v. Jannini, 226 Mass. 430; United States Fidelity & Guaranty Co. v. English Construction Co. 303 Mass. 105, 108-109.
It appears from the agreed facts that Jeremiah Daley died in this Commonwealth on February 10, 1898, leaving a will which was duly admitted to probate. The demand-ant Alice J. Daley was appointed trustee under this will on April 2, 1937. Jeremiah Daley left a widow and four minor children, all of whom are now living. He died seised in fee of an undivided half interest as tenant in common with the said Dennis Daley, in the land which is the subject matter of this controversy.
The will gave everything to the testator’s brother, James, as trustee, “but in trust nevertheless for the following purposes namely: one-third of said personal estate, and a life interest in one-third of said real estate, to my wife .... All the rest and residue of my estate to be given to my children in equal shares to be managed in such way as the
The widow and four children of Jeremiah Daley “neglected for more than twenty years to claim their life estates . . . neglected to enter upon the aforesaid premises as life tenants for more than twenty years and at the end of said period, to wit, February 10, 1918, they lost then-right of entry as life tenants and the statute of limitations thereafter barred them from the use of a writ of entry and left them without a remedy to recover their life estates. The remaindermen or reversioners as the case may be on said February 10, 1918, acquired a right to make an entry and recover possession of said premises through the use of a writ of entry.”
The trustee named in the will never qualified. Up to the time of his death, Jeremiah Daley lived in one of the houses on the premises in question and his widow and children continued to occupy it thereafter for about five years and paid rent to Dennis Daley. In 1904, he demanded that the widow and children vacate, and they went to live elsewhere. “The surviving copartner [the said Dennis] as shown by the ouster of the widow and children in 1904 took complete possession of . . . [the] real estate following the death of Jeremiah Daley . . . collected the rents, enjoyed the full use . . . and the earnings thereof; and the mortgages which the two brothers had placed thereon were discharged by him . . . [as of record].”
Dennis Daley died on January 21, 1929, “and the tenants are his only heirs at law and next of kin and the only heirs at law and next of kin of his widow, Nellie M. Daley, . . . deceased, and at present are collecting the rents from . . . [the] land . . . .” On November 10, 1936, the
On May 2, 1939, Alice J. Daley, “Trustee,” William J. Kearnan, by his guardian, Ruth Kearnan and Hazel M. Daley made open, peaceable and unopposed entries upon the land in question, as evidenced by instruments recorded in the appropriate registry of deeds.
“The statute of limitations which bars the recovery of their life estates by the widow and children of said Jeremiah Daley which they suffered to run by remaining out of possession for more than twenty years did not become effective at the earliest until February 10, 1918, twenty years from the date of the death of said Jeremiah Daley.” If the ten years grace extending the limitation period in ease of minors or persons under disability, permitted by G. L. (Ter. Ed.) c. 260, §• 25, is applicable to Hazel M. Daley and Ruth Kearnan, it is conceded that they made entry and brought this writ within the time required by law, and it is conceded that William J. Kearnan made his entry and brought this writ, within the time prescribed by the statute of limitatians, “if applicable to him.”
It was decided in Daley v. Daley, 300 Mass. 17, that the petitioners in that case had acquired no legal title to the one half of the real estate in question, which they claimed . by adverse possession, and had no standing to maintain their petition; that the will of Jeremiah Daley made no provision for the remainder after the life estate of the widow, unless it falls into the residue of the estate and is then held in trust for the benefit of the children during their lives, and no provision for the shares in which the children
Three of the children of the testator have no children. The fourth is the father of Hazel M. Daley and Ruth Kearnan, and the grandfather of William J. Kearnan. We disregard, as did the trial judge, the statement in the agreed facts to the effect that the remaindermen or reversioners, as the case may be, on February 10, 1918, acquired a right to make an entry and recover possession of the premises by means of a writ of entry on the ground that this is a statement of law and not of fact.
The judge of the Land Court ruled that the writ in the case at bar was prematurely brought, found for the tenants and ordered judgment accordingly, but without prejudice to the right of the demandants to bring another writ when their right of entry has accrued upon the death of all the life tenants. There was no answer in abatement. See G. L. (Ter. Ed.) c. 231, § 20.
We think it clear that the demandant trustee has no standing to maintain this writ. The right of any trustee under the will to maintain the writ is barred by the operation of the statute of limitations. Daley v. Daley, 300 Mass. 17, 22. It is unnecessary to determine the status of the demandant William J. Kearnan for if it should be determined that his mother and aunt are entitled to maintain the writ in their own right, then, by the construction of the will that has been intimated, they would be entitled to judgment for their interests in the real estate. G. L. (Ter.
It is apparent from the agreed facts that the parties rely upon the decision in Daley v. Daley, 300 Mass. 17. ' At least it can be said that the tenants do not now contend that they have acquired by adverse possession anything more than the life estates of the widow and children of the said Jeremiah Daley. The statement appears that the widow and children neglected to enter upon the premises as life tenants for more than twenty years, and that at the end of that period “they lost their right of entry as life tenants and the statute of limitations thereafter barred them from the use of a writ of entry and left them without a remedy to recover their life estates.” It also appears that “The surviving copartner [Dennis] as shown by the ouster of the widow and children in 1904 took complete possession of both of said parcels of real estate . . . .” We cannot adopt the statement to the effect that the earlier opinion “determined that the tenants (petitioners therein) had acquired no legal title to the aforesaid premises by adverse possession.” It was decided in that case that the petitioners had not acquired title by adverse possession to the entire fee, that is, to the one-half part of the real estate standing in the name of Jeremiah Daley. It was pointed out, however, that although the children of the testator (Jeremiah) were minors at the time of his death and consequently under a disability, “even if the youngest child was but a day old, such child is now barred” (page 22). It was also pointed out that the remaindermen were not barred “by the adverse possession which has resulted against the trustee and the life tenants” (page 23). Reference was made to the generally accepted rule that 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” (page 21). The decision in the case at bar must proceed upon the theory
1. The demandants cqntend that the life tenants did not accept the life estates that were devised to them; that the life estates lapsed, or that they became merged with the remainders. As to these contentions, it is to be borne in mind that the life tenants, so called, were beneficiaries under a trust established by the testator for the term of their respective lives. When the testator died, he left a widow and four minor children, the youngest of whom was less than two years of age, and the oldest, less than twelve. If we assume, without deciding, that the beneficiaries were under any obligation to signify their acceptance of the devises in trust, it does not appear from the agreed facts that they had any opportunity to do so. See Hidden v. Hidden, 103 Mass. 59, 61; McGivney v. McGivney, 142 Mass. 156. At best, the life tenants, so called, had but an equitable title which would not have enabled them to maintain a writ of entry. Packard v. Marshall, 138 Mass. 301. Webster v. Gilman, 1 Story C. C. 499. Furthermore, it appears from the earlier decision that in 1932 the life tenants, except for one, refused to execute a quitclaim deed “in order to remove the cloud on the title.” Although the trustee named in the will never qualified, nevertheless one of the life tenants was appointed as such in 1937. Finally, the life tenants contested the petition for the alleged removal of a cloud on the title, the subject matter of the earlier decision. In the circumstances, we are of opinion that the agreed facts do not require a conclusion that will support the contentions now under consideration. It is well settled that devisees under a will have a right to elect whether or not they will accept a devise. Until they actually renounce their assent to the provisions of the will which are apparently beneficial to them, it will be presumed. Stebbins v. Lathrop, 4 Pick. 33. Hidden v. Hidden, 103 Mass. 59. See Knapp v. Meehan, 287 Mass. 573; Smith, v. Livermore, 298 Mass. 223, 245-247; Webster v. Gilman,
The demandants contend, however, that as the remainder-men were not barred by the adverse possession which has resulted against the trustee and the life tenants, they had a right to enter, as it appears they did, upon the demanded premises and to bring their writ of entry before the expiration of the limitation period applicable to them “following the disseisin of the life tenants.” In support of this contention they rely upon cases commencing with Wells v. Prince, 9 Mass. 508.
When the Revised Statutes were adopted, an entirely new chapter, 119, on the limitation of real actions and rights of entry, effective on December 31, T839, was enacted. This chapter materially changed the statute law as to the limitation of real actions, and some of its sections were taken substantially from the English statute, 3 & 4 Wm. IV, c. 27, noticeably § 3, which now appears in substantially the same form in G. L. (Ter. Ed.) c. 260, § 23. At the same time Rev. Sts. c. 101 was enacted'. The commissioners’ notes disclose that by said c. 101, it was proposed to abolish all writs of right and all but one of the writs of entry. See now G. L. (Ter. Ed.) c. 237. Rev. Sts. c. 59 also made important changes. By § 6 it was provided that a conveyance made by a tenant for life or years of a greater estate than he possessed or could lawfully convey, should not work a forfeiture of his estate, but should pass to the grantee all the estate which such tenant could lawfully convey. See now G. L. (Ter. Ed.) c. 184, § 9. Section 7 of said c. 59 provided that no expectant estate should be defeated or barred by any alienation or other act by the owner of the precedent estate or by any destruction of such precedent estate by disseisin, forfeiture, surrender or merger. See now G. L. (Ter. Ed.) c. 184, § 10. The commissioners, in their notes on § 6, pointed out that a feoff
Before these important changes were made in our statute law, in the case of Wells v. Prince, 9 Mass. 508, decided in 1813, it was held that although a devisee for life refuses to accept the estate devised, "and the remainder-man thereby acquires an immediate right of entry,” yet he is not obliged to avail himself of his right so accruing but he may enter after his second right accrues by the death of the tenant for life. This was followed by the case of Wallingford v. Hearl, 15 Mass. 471, decided in 1819. In that case the tenant for life had been disseised and the disseisor and his heirs continued in possession until the death of the tenant for life. The opinion by Parker, C.J., was that the demandant’s right of entry accrued on the death 'of the tenant for life. "It is said that he might have entered before, in consequence of the disseisin of the tenant for life. If he might, the law imposed no obligation upon him to do so. . . . It is settled, in the case of Wells vs. Prince . . . that, although the reversioner may enter before the death
In Marcy v. Marcy, 6 Met. 360, decided in 1843, it was said that in Wallingford v. Hearl, supra, the court determined that where a tenant for life is disseised and the disseisor and his heirs continue in possession forty years, and until the death of the tenant for life, the reversioner’s right of entry commenced at the death of the tenant for life, and that “the same doctrine was maintained in the previous case of Wells v. Prince . . . [supra].”
By the common law, the particular estate and the remainder made up a whole, and the particular estate was said to support the remainder. Livery of seisin had to be
We are of opinion that the court must have had in mind these ancient doctrines of the common law in the discussion of the principles involved in the cases just referred to, although in the case of Jewett v. Jewett, 10 Gray, 31, decided in 1857, it may have lost sight of them for the moment. In that case the testator had devised the premises in question to one for life with the remainder to the demandant and others. The tenant and his grantor had been in peaceable and uninterrupted possession of the premises from the time of their sale for the purpose of paying debts under license of court to the date of the writ. The sale, however, was not effective for the reason that the tenant failed to prove that the receipts of the sale had been accounted for properly. There was an old statute which provided for the bringing of actions to recover real estate sold under such license. It was said that, “The demandant had no seisin of these premises, nor any right of entry, which would have enabled him to maintain this action, until after the death of his father, the tenant for life.”
But we are of opinion that in the case at bar these older
From the history of these statutory sections, and the state of the law at the time they were first enacted, it would seem that the right of entry or of action had been definitely determined to the exclusion of any rights that might have existed theretofore. Where there is an intermediate estate, as there was in the case at bar, the only exception provided for is that a person may enter at another time if “entitled so to do by reason of any forfeiture or breach of condition; but in such case, his right shall be held to have accrued when the forfeiture was incurred or the condition was broken.” As already pointed out, it is provided by G. L. (Ter. Ed.) c. 184, §§ 9 and 10, and these provisions have been in force since 1839 by virtue of Rev. Sts. c. 59, §§ 6 and 7, that a conveyance by a tenant for life or years, which purports to grant a greater estate than he possesses - or can lawfully convey, shall not work a forfeiture of his estate, but shall pass to the grantee all the estate that such tenant can lawfully convey; and that no expectant estate shall be defeated or barred by an alienation or other act by the owner of the precedent estate, nor by the destruction of such precedent estate by disseisin, forfeiture, surrender or merger, subject, however, to the limitation contained in § 11 of said chapter that the provisions of §§ 9 and 10 shall not prevent an expectant estate from being defeated in a manner provided for or authorized by a person creating such an estate.
If, as it is the law, adverse possession of real estate for the period described in the statute of limitations, not only
It is true that by the provisions of G. L. (Ter. Ed.) c. 260, § 23, Third, where there is an intermediate estate, a person nevertheless may enter if entitled so to do by reason of any forfeiture or breach of condition. But in such case his right shall be held to have accrued when the forfeiture was incurred or the condition was broken.
These provisions as to forfeiture and breach of condition are substantially those appearing in 3 & 4 Wm. IV, c. 27, which were incorporated into our Rev. Sts. c. 119. Blackstone states as to forfeitures: “Lands, tenements, and hereditaments, may be forfeited in various degrees and by various means: 1. By crimes and misdemeanors. 2. By alienation contrary to law. 3. By non-presentation to a benefice; when the forfeiture is denominated a lapse. 4. By simony. 5. By non-performance of conditions., ■ 6. By waste. 7. By breach of copyhold customs. 8. By bankruptcy.” 2 Black. Com. 267. Alienation by particular tenants by feoffment or fine also worked forfeiture as already pointed out. Disseisin of the life tenant does not appear to have been a ground of forfeiture, although a passage in 2 Co. Lit. 252, a, may have some significance in connection with some of the statements in our earlier cases, to which reference has already been made: “Littleton here speaketh of the forfeiture of an estate; and here it is to be knowen, that the right of a particular estate may be forfeited also, and that he that hath but a right of a remainder i or reversion shall take benefit of the forfeiture. As if tenant for life be disseised, and hee levie a fine to the disseisor, he in the reversion or remainder shall presently enter upon the disseisor for the forfeiture. And so it is if
When the provisions of §§ 9 and 10 of said c. 184 are considered, it would seem that there are few forfeitures or conditions broken that would entitle a remainderman to enter except those comprehended by § 11 of said c. 184 which limits the provisions of said §§ 9 and 10 so as to provide that estates in tail may be barred and that an expectant estate may be defeated in a manner “provided for or authorized by the person creating such estate.” This lengthy consideration of the demandants’ contention leads to the conclusion that they have no right to maintain their writ upon any theory that the life estates are not outstanding.
2. What has been said disposes of the contention of the demandants that, the title to the premises having vested in the trustee for the benefit of the life tenants in the circumstances disclosed by the agreed facts, their life estates “fell out of the trust” so that the trustee, at the end of the twenty years of adverse possession, held for the sole benefit of., the remaindermen. From what has been said, it" is apparent that the estate that passed to the trustee to be held for the lives of the life tenants was lost as the result of adverse possession, and that the title has vested in the disseisors by virtue of the statute of limitations.
3. The final contention of the demandants is that the trust that was created was a personal one founded upon the trust and confidence which the testator meant to be exercised by one trustee only, his brother James. It is a general rule of law that where a power is created and given in a will or deed by words that clearly indicate that the donor of the power placed special confidence in the donee, so that the element of personal choice or selection is found, then the exercise of such a power must be confined to and exercised by the person or persons so selected, and ordinarily is not transmissible. Sells v. Delgado, 186 Mass. 25, 27,
Decision affirmed.