Martin v. Smith

| Mass. | Feb 8, 1878

Morton, J.

By the fourth clause of the will of John Garrity, he gives the interest which he had as mortgagee in the demanded premises, to his father during his life, in trust for his nephews, the tenants, and, after the decease of his father, to his said nephews. This was a bequest of personal property, and did not pass to the tenants any title to the mortgaged land. The mortgage debt was overdue, and it was the right and duty of the mortgagor, who was also executor under the will, to pay it. Jt appears that Bartholomew Garrity was duly qualified as executor, and that in 1861 he filed his account, in which he charged himself with the amount of the mortgage note as assets in his hands as executor. This operated as payment of the note, and discharged the mortgage. Bartholomew Garrity then held the balance of money in his hands as trustee under the will, for the benefit of the tenants, but they had no interest in the land, and therefore their entry to foreclose in 1873 was ineffectual,, and gave them no title to the demanded premises.

The remaining question is, whether the demandant proves an exclusive title in herself. She claims under the third clause of the will of Bartholomew Garrity, which gives to her “ all the real estate I may die possessed of, to her and her heirs and assigns forever, which property is situate on the north side of North Street in said Lowell.” At the time of his death, the testator was seised and possessed of two lots of land, one a lot on the north side of North Street, occupied by buildings, the other a vacant lot on the south side of the street, being the demanded premises. The devise of “ all the real estate I may die possessed of ” clearly includes both lots of land.

The general rule is undisputed, that a gift by words of general description is not to be limited by a subsequent attempt at particular description, unless such appears to be the intention of the testator from the whole will. Allen v. White, 97 Mass. 504" court="Mass." date_filed="1867-10-15" href="https://app.midpage.ai/document/allen-v-white-6415102?utm_source=webapp" opinion_id="6415102">97 Mass. 504. This will, in its words of general description, purports to dispose of all the property, real and personal, of the testator. There is nothing to indicate an intention to make only a partial disposition of his estate. We are of opinion that the case falls within the general rule, and that .the general description is not limited by the particular misdescription of the estate as being on the north side of the street. It follows that the demandant shows an exclusive title in herself. Judgment for the demandant.