148 Mass. 42 | Mass. | 1888
The ruling asked for by the respondent was properly refused. The question at issue was, whether James Fales was seised of an undivided interest in the lands in controversy at the time of his death. This depended, first, on whether he had delivered certain deeds to Giles S. Fales; and, secondly, whether, if such deeds had been so delivered, there had been a reconveyance, by a lost grant, to James. The respondent asked for a ruling that certain declarations by Giles tending to show an ownership in common could bear only on the question of due delivery of the deeds from James to Giles. But they were competent to be considered, also, on the question of a lost grant. White v. Loring, 24 Pick. 319. Besides, the question of the correctness of this ruling is now unimportant. The jury found that the deeds had never been delivered. If never delivered, there was no question of a reconveyance to be considered. The evidence was conceded to be competent upon the question of the délivery of the deeds, and the finding of the jury made that the only question of importance.
No reliance was placed, in the argument, upon the above objection; but it has been earnestly contended that the judge erred in overruling the motion of various persons not named in the petition as interested in the lands, that the proceedings be continued from term to term until they have had time to appear and answer thereto. They claimed to be interested under the eleventh article of the will of Giles S. Fales, which was produced ; and they offered no other evidence in support of their claim and motion except the will itself. It is contended that they were not bound to produce any other evidence at that stage, but that the court ought to have allowed the motion, and to have permitted them to appear and plead their title, and to go to the jury on the question of the delivery of the deeds from James to Giles; but we do not think so. Before they could be entitled to be heard on the main questions at issue, it was proper that they should be held to show that they were interested in those questions. If they had no interest, there was no occasion to delay the proceedings in order to give them an opportunity to come in and try the case over again.
By the Pub. Sts. c. 178, § 11, it is provided that, “If in any stage of the proceedings it appears to the court that any person
It remains to inquire whether the mere production of the will showed that these persons had any interest in the lands; and it is apparent that it did not. It may be assumed that one who has a contingent remainder in land is entitled to defend against a petition for partition. Pub. Sts. c. 178, § 5. But it was not made to appear that these persons had a contingent remainder. The will is quite peculiar in its provisions. The motion asserts that these persons are interested under article eleventh of the will. That article provides that, “ In case of the death of my wife, Sarah A. Fales, before my estate is settled, all that portion of my whole estate real and personal that would have been hers I bequeath and devise to my nieces,” namely, the persons seeking to appear and be heard. But there was nothing to show that the estate remained unsettled. If settled, then the contingency mentioned had failed, and the interest of the nieces had failed. They did not make it appear that they were interested.
The will does not point out how she is to manifest her approbation or rejection. But the manner is not now material. The provisions of article eleventh of the will give to the persons named therein no right or interest in the land, as against the respondent, Sarah A. Bales; and in her answer to the petition she claims to be the absolute and sole owner. The result is, that the exceptions are overruled, and the motion for leave to appear was properly overruled. So ordered.