43 N.H. 309 | N.H. | 1861
Most of the limitations of the deed of John Welch to Barzilla Welch, were inoperative, the contingencies provided for never having arisen. Barzilla survived his wife, and the grant to
There seems to us no ground to contend that at common law Sarah Jane would take an estate tail, which would, under our law, be an estate in fee. ITer children, if she had any, must have taken, if they could take at all, in equal shares, as devisees and purchasers, and not as heirs in tail, which is inconsistent with the nature of an estate tail in her; and by the concluding clause, “to the use and behoof of their heirs and assigns for ever,” each of the grandchildren must take an estate; and this seems, also, conclusive, that there could be no coalescence of the estate limited to them with the life estate of the mother, to vest in her an estate tail.
The question then arises, 'whether the reversion, or residue of the property passed by the deed to Barzilla, the trustee, and his heirs, or whether it resulted to the heirs of the grantor, John Welch. If the former is held the correct view, then the reversion was, at the time of the sale by license of the court of probate, vested in Sarah Jane alone; but if the latter, then the plaintiffs, as heirs of John Welch, and co-heirs with Sarah Jane, wTere each entitled to one fourth of the reversionary interest.
The rule of law on this subject is laid down in 2 Story’s Eq. Jur., sec. 1199. “This distinction is to be observed in cases where the consideration, though purely nominal, is stated in the deed. If no uses are declared, the grantee will take the whole, and there will be no resulting use for the grantor, because the payment even of a nominal consideration shows an intent that the grantee should have some use; and no other being specified, he shall have the whole use. But when a particular use is declared, then the residue of the use results to the grantor, for the presumption that the grantor meant to part wdth the whole use is thereby repelled.” And section 1200; “ The same principle applies, where the whole of the estate is conveyed, or devised, but for particular objects and purposes, or on particular trusts. In all such cases, if those objects, or purposes, or trusts, by accident or otherwise, fail and do not take effect, or
The consequence of the use thus resulting by implication is, that at the time of the license, granted by the court of probate to sell the land as the property of Sarah Jane, she was seized of an estate for her own life, and she and James Welch, Jane Welch, and DorcasLeighton, under whom the defendants justify, were jointly seized, as heirs at law of John Welch, of the reversion after her life estate, subject to the contingency of her children’s estates, if she should have children.
If the interest of Sarah Jane was properly described in the petition for license, and in the other proceedings, the sale would be good to convey her life estate and her share of the reversion, and nothing more; and the plaintiff would be entitled in a real action to recover one quarter part of the land in question ; but could not maintain this action upon the ordinary principle that joint tenants and tenants in common can not maintain trespass against their co-tenants for a mere breaking and entering of the close and taking of the whole profits, or for cutting trees proper to be cut, though they may for an ouster or actual exclusion of the co-tenant from the land. Odirne v. Lyford, 9 N. H. 511; 1 Ch. Pl. 180.
By the statute relating to licenses for the sale of real estate of persons deceased (Rev. Stat., ch. 164), such license may extend to the reversion of the widow’s dower, or to any interest in land whatever ; but any other estate except a present fee, shall be particularly specified in the application, notice, and license; but this proviso is not applied in terms to licenses applied for by the guardians of minors and others. Rev. Stat., ch. 150, sec. 22, &c. But the principle seems a correct and proper one to be applied in all cases of license, the same reasons seeming to exist in the last case as in the former. It is not necessary in this case to decide any thing upon this point, but if that principle should be held to apply, there has been an insufficient compliance with the law in this respect. The petition describes the land as conveyed to Barzilla Welch by John Welch in the terms of the deed in every respect, except the concluding clause, which, instead of saying “ to the use of their (the grandchildren’s) heirs and assigns,” says, “to the use of his (Bar
Unless, then, it should appear that the declaration alleges an ouster of the plaintiffs from the land, there must be
Judgment for the defendant.