164 Mass. 52 | Mass. | 1895
The demandant contends that the effect of the deed given in 1885 by Albert Southworth to the tenant and Jedidiah A. Southworth was to convey in fee to the grantees as tenants in common the premises described in it, and that as he claims under Jedidiah, he is entitled to an undivided half. The question is whether this construction is correct. The deed sets forth that the grantor, “ in consideration of one dollar and other valuable considerations paid by Jedidiah A. Southworth and Louisa J. Southworth,” gives, grants, bargains, sells, and conveys unto them the premises in question, “ Reserving to Harriet Southworth, mother of the grantees, all the rights which she may have in the granted premises; and provided that, should either of the grantees decease before their mother, Harriet Southworth, then the other grantee, his or her heirs and assigns, shall have the whole of said real estate, reserving to the said Harriet Southworth all the right which she may have in the granted premises. Being the same premises set off to me as a homestead by commissioners appointed by court.” The haben
We understand that what was set off to the wife was the homestead estate for her life, and we think that the object which the grantor had in view is plain. He intended to convey the property to the grantees to hold subject to such rights as his wife had, and if either of the grantees died before she died, then the survivor was to take the whole, subject to her estate. The question is whether this purpose can be carried into effect consistently with the rules of law.
The tenant contends that the deed may be treated as a conveyance in joint tenancy. The difficulty with this is that the grant, habendum, and covenants are all to and with the grantees as tenants in common. The conveyance is to them as tenants in common. Pub. Sts. c. 126, § 5. It is only in case one of the grantees dies before the mother that there is a provision for an estate by survivorship. It is thus attempted to create an estate in fee simple to arise in futuro on the happening of a certain contingency upon another estate in fee simple,, which can only be done by way of a use. As a conveyance to uses the deed is inartificial. But, as already observed, the intent is plain ; and it has been held that no precise form of words is required to create a conveyance to uses, and that “ a conveyance of land may always be construed to be that kind and species of conveyance which may be necessary to vest the title according to the intention of the parties, if such interpretation is not repugnant to the terms of the grant.” Chenery v. Stevens, 97 Mass. 77, 85. The demandant admits, in substance, that, if a right of homestead had been given to Mrs. Southworth by the deed, a case similar to Chenery v. Stevens would have arisen. He contends that in the present case there is no conveyance to a use, that the gran
We think, therefore, that the ruling of the Superior Court was right. Judgment affirmed,.