69 Me. 489 | Me. | 1879
An action of trespass is a proper remedy for an injury done to one’s possession of things, real or personal. To maintain it here the plaintiff must show that she had the possession, either actual or constructive, of the land described in her writ, rightfully as against the defendant.
This doctrine is recognized in numerous cases in this state and in Massachusetts, and seems to arise necessarily from the nature of the action. See Taylor v. Townsend, 8 Mass. 411, 415. Allen v. Thayer, 17 Mass. 299. Bigelow v. Jones, 10 Pick. 161. Blood v. Wood, 1 Met. 528. Tyler v. Smith, 8 Met. 599. Prop. Ken. Purch. v. Call, 1 Mass. 483. Bartlett v. Perkins, 13 Maine, 87. Brown v. Ware, 25 Maine, 411. Abbott v. Abbott, 51 Maine, 575. Howe v. Farrar, 44 Maine, 233.
The case seems to have been somewhat carelessly and hastily made up, and it is not clear that the questions which the parties may have designed to present can be regularly reached.
The plaintiff relies upon a constructive possession arising from proof of title, which, if the title were established, would answer the purpose and make a prima facie case, provided the evidence she offers did not show herself and her grantor actually disseized before the time of the acts complained of, and fail to show the necessary re-entry. She presents a deed from Clarissa S. Kerr purporting to convey the locus, as administratrix of Thomas Kerr, to Clara M. Jones. If, making allowance for rather more than the usual amount of heedlessness and consequent mistakes, we assume the identity of divers persons described by different names and the regularity of the proceedings of the administratrix in making the sale, we may conclude that the plaintiff has the title which Kerr had in his lifetime. That title depends upon the construction to be given to the will of John Kerr, who owned the farm of which the locus is a part, and by his will dated November 20, 1844, undertook to dispose of his worldly estate, in total disregard of everything like technical precision, and to some extent of consistency also. In the outset he gives to his two
“ A devise of land must be construed to convey all the estate of the devisor therein, unless it appears by his will that he intended to convey a less estate.” R. S., c. 74, § 16. It was held that, by a devise, made before this provision was enacted, of the whole of the testator’s estate of every name and nature, both real and personal, after the payment of debts, without words of inheritance,
There can be no doubt that the language first used by John Kerr imports the giving to his wife Margaret of a foe in all the homestead farm, “ except the twenty-five acres given to . . George.” Margaret was personally charged with the payment of debts, and with the maintenance and education of Thomas, and divers other matters which the testator required. But Kerr after-wards thought that some provision should be made for Thomas if he arrived at the age of twenty-one years, living with his mother, and he thereupon provides that, in that contingency, he “ shall have from the real estate g;iven my wife ” the parcel upon which it is alleged the defendant has trespassed.
The plaintiff contends that the intention of the testator is clear, and that at all events the last expression of his will, if there is a conflict, must govern ; and defendant claims that the devise to Thomas N. is inoperative and void within the doctrines laid down in Ramsdell v. Ramsdell, 21 Maine, 288, and Shaw v. Hussey, 41 Maine, 495. To this specific devise to Thomas we do not think the doctrines of the cases just cited apply, whatever effect they may have upon the attempted devise’ over to Thomas of a supposed possible remainder at the death of his mother.
We are not compelled, in order to sustain the devise of the locus to Thomas N-, to resort to the arbitrary rule of construction invoked by the plaintiff, that the last expression of the testator’s will shall govern. It is a well established rule that, when the testator makes a general devise or bequest of his property which would include the whole of his estate, and in other portions of his will makes specific disposition of some part or parcel, the specific disposition shall be regarded as making an exception or qualifica
Accordingly, when a testator, after devising the whole of his estate to A, devises Blackaere to B, the latter devise will be read as an exception out of the first, as if he had said, “ I give Blackaere to B, and, subject thereto, all my estate, or the residue of my estate, to A.” Cuthbert v. Lempriere, 3 Maule & S. 158.
If it had not appeared by the testimony of plaintiff’s witnesses that the locus was in the open and notorious possession of a disseizor prior to the time when the plaintiff took her deed, we should say that the plaintiff had made a prima facie case.
But it does not appear that Thomas N. Kerr was ever in possession of the locus, claiming it as his own under the devise. On the contrary, it would seem to have been with the rest of the farm in the possession of Margaret, his mother, the widow of the testator, and not of Thomas N., except so far as he “ lived there with the old folks,” and, as his widow Clarissa testifies, “ the fall before I went there she (the old lady) gave the whole place up to my husband to maintain hex.”
This arrangement lasted some years and then Thomas N. left, and died elsewhere. Leeman, the defendant, manned a daughter of John Kerr, and for some four years before the trial seems to have been carrying on the place under some arrangement with Margaret Kerr, the widow of the testator, who lives with him and her daughter.
Clarissa Kerr, the plaintiff’s mother and principal witness, while testifying to the acts of Leeman which are alleged as trespasses, says : “ I attempted to take possession of this property described in the writ, and the family that lived there would not give it to me. Leeman lived on it. I forbid his cutting there once, and he said he would fix that and me too.”
The plaintiff does not seem to have moved in the matter at all, and there is no evidence of a re-entry to purge a disseizin, which seems to have amounted to an actual ouster.
The plaintiff’s rights can more properly be tried in a writ of
Plaintiff nonsuit.