Foster v. Smith, 211 Mass. 497

211 Mass. 497 | Mass. | 1912

Hammond, J.

By the second paragraph of the will of Jonas Smith two parcels of land were devised. The petition as finally amended concerns only the first parcel. It is contended by the respondents that the habendum clause of the paragraph does not affect this parcel, but only the second. This position is untenable. The description of each parcel is included between the granting or devising clause and the habendum clause, and it is manifest that the latter clause refers to all covered by the first. Such is the only reasonable interpretation.

Irrespective of the powers, the will creates as to this real estate a joint tenancy for life in the three children of the testator with a remainder in fee to such of their children as shall be living at the time of the death of his last surviving child. But both these estates, that for life as well as that in remainder, are subject to modification by the exercise of the powers conferred upon the life tenants. There are two powers given to each life tenant, — one to convey his interest to the other life tenants or either of them, and one to convey his interest to either one or more of the children of any of them. In case of a conveyance under the first power the estate granted is vested in the grantees or grantee for life and the remainder in fee in their children, share and share alike, or in default thereof to their heirs. This power never was exercised and, as only one of the life tenants is now living, never can be exercised. It is to be considered only so far as it throws light upon the meaning of the second power. In the case of a conveyance under the second power there was vested in the grantee a “full and perfect title in fee simple, notwithstanding the above devise to my children as joint tenants.”

It is evident from the will itself that the draughtsman was well acquainted with the rules of law as to real estate and as to powers. The general plan for the disposition of the land was simple in outline. There was a joint tenancy for life in the three children of the testator with remainder in fee to certain of his grandchildren. The life estate was vested, the remainder was contingent going only to those who should be living at the time of the death of the last life tenant. If the testator had stopped here, then in the absence of any conveyance by the life tenants or either of them, the joint tenancy would have continued under the right of survivorship in the survivors for the time being until the death of the last survivor, when the contingent remainder would have become vested. If either joint tenant had conveyed his interest, then as to that interest the joint tenancy would have ceased and his grantee would have held as tenant in common with the others. As to this part the right of survivorship would be gone. But a conveyance by one of three joint tenants of his interest does not affect the joint tenancy of the other two as to their interests. As between these two the right of survivorship still remains as to their interests. The relation between them and the grantee of the other is that of tenants in common, while that between themselves is that of joint tenants as to their interest, with the right of course in each of them to sever by conveyance the joint tenancy still remaining between them. Co. Lit. § 294. 2 Bl. Com. 186. But while the joint tenants could have dealt at will with the life estate, they in the absence of the powers given in the will could not have dealt with or affected in any way the remainder. Such Would have been the situation in the absence of any special powers.

We are now brought to the consideration of the nature and effect of the second power. By the death of Francis and Webster, two of the life tenants, the whole life estate became vested in Caroline, the sole survivor. She proceeded to act under the second power and made a conveyance of her interest in the land to her daughter, who is the petitioner. The deed recites the power, and there is no doubt that the deed conveyed all that the grantor, either in her individual capacity or as donee of the power, could convey, and that the grantee received by virtue of the deed and of the power all that she could receive.

The power was given “to my said children or to either of them ... to convey his, her or their interest... to either one or more of the children of any of them,” and “such conveyance so made shall vest in the grantee thereof a full and perfect title in fee simple, notwithstanding the above devise to my children as joint tenants.” The power is to convey the interest of the life tenant. What was the interest of Caroline, the life tenant? While all were living she was one of three and could have conveyed a life estate in an undivided third of the land. While only two were living she was one of two and could have conveyed a life estate in only an undivided half of the land. When she became the sole survivor she could have conveyed the life estate in the whole land. And this she could have done as an incident to the joint tenancy. If, acting under her common law rights as a joint tenant and not under the power contained in the will, she had made a conveyance of her interest to a stranger, which she certainly could have done, the grantee would have taken what her interest was at the time of the conveyance, either a life estate in the whole land or in an undivided half or third, as the case might be.

But it is argued by the respondents that, whatever might have been her powers at common law and whatever might have been the legal effect of a conveyance thereunder, this deed was in pursuance of the power and in exercise thereof, and that by the language of that power the interest which was to be affected and to which under the power the title in fee simple was to attach was not her interest in the life estate at the time of the conveyance, but her original interest, namely, one third.

But this interpretation does not commend itself to us. The most natural interpretation is to consider that the interest she had the power to convey was the interest which she had at the time of the conveyance.

By virtue of the deed the whole life estate passed to the grantee and by virtue of the power there was vested in the grantee a full and complete title to the land, the life estate in which was conveyed by the deed. The grantee became seised of the fee in the land. Upon this branch of the case we concur with the following language of the judge of the Land Court: “It seems to me that the intention of the testator as to the land in question was first, to keep it in the family, and second, subject only to that limitation, to leave it within the control of his three children. Each could dispose of his own life interest and each could dispose of the remainder thereunder as he saw fit within, the limits of the family. I find no intention, except only on failure to exercise any of the powers, to preserve the estate in thirds or in shares to be held per stirpes. On the contrary the powers of disposition given to each child expressly provided for either a severance or a consolidation of both the estates for life and of the remainders thereunder. The testator’s intention seems to me manifest that the property should eventually vest in such grandchild or grandchildren as his own children might select for the purpose. These respondents could have been selected either by their own parent or by their uncle or aunt. By not exercising the powers given him each child as he died left not only his life estate, but the power of disposition over the remainder, to the survivors and then to the last survivor. ... It seems to me that it was the intent of the testator that the title thus vesting in fee simple should be the title to the entire estate and that he used words not only apt, but technically exact, for that purpose. I rule that under the will of Jonas Smith and the deed from [Sarah] Caroline Pierce the petitioner acquired a title in fee simple to the whole of the land now in controversy.”

The ruling was right. The ruling as to the right of way was also right. In the deed from Jonas Smith to Francis Smith of the land adjoining the land in controversy it was mentioned as the “path leading to Lilly Ditch,” that is, as an existing way. The provision for a right of way over the path may take effect as an exception. Hamlin v. New York & New England Railroad, 160 Mass. 459. Bailey v. Agawam National Bank, 190 Mass. 20, and cases cited.

Exceptions overruled.