Millerick v. Plunkett

| Mass. | Nov 28, 1904

Knowlton, C. J.

This case presents but a single question, namely, What is the proper interpretation of the will of Joseph Plunkett, in reference to the devise to his wife of the house in which he lived, with the land appurtenant thereto. The difficulty arises from the use of terms of description, in that devise and in other parts of the will, which are inconsistent with one another. The mistake probably arose from the testator’s failure to remember the true location of the boundary line between lots acquired by him at different times. The will was made in 1895, and he had owned the greater part of the land since 1867. The other part his wife acquired in 1869, and conveyed to him through a third person in 1872. The cottage house in which the testator lived, as originally constructed, had its westerly wall within about two and one half feet of the westerly line of the lot which he first purchased. In 1882 he built an ell on the west side of the house, extending it ten and three tenths feet, so that it stood over between seven and eight feet upon the land conveyed to him by his wife. This ell contained two bedrooms, and was supported by a stone foundation. The next year a very small barn was moved upon tbe rear portion of the lot, so that a part of it was directly back of the ell and a part of it extended farther westward. According to the plan, the front part of the barn was not more than six or eight feet from the rear of the ell. The cellar of the house had but one door, and this was put in by the testator. It was connected directly with the barn by a path. The rear door of the original house also was connected with the barn by a plank walk. This barn afterwards was used in connection with the house, in summers for cooking and washing clothes until after the year 1895, and afterwards mostly for keeping wood. The household washing was done in the cellar, and the clothing was then carried out through the cellar door, and along the path around the westerly side of the ell to the clothes yard, easterly of the house. The lot which originally went with the house before the construction of the ell was a little less than sixty feet long upon the street, and nearly fifty-four feet deep from front to rear.

The language of the first clause of the will is as follows: “ First, I devise to my wife Ann Plunkett the cottage house and the land £ appertenant’ thereto. Being the house I now live in and situate on William street in Fall River. The land begins,” etc. (Then follows a description by metes and bounds, which stops at the westerly line of the lot originally bought by him, and which does not include the land under the greater part of the ell.) The lot formerly owned by his wife extended westerly along the street one hundred and twenty-five feet from the line of the lot first bought to Mulberry Street. The third clause of the will is as follows: “ Third, I devise to my sons William Plunkett, Joseph Plunkett, Edward Plunkett and John Francis Plunkett the lot of land at the corner of William and Mulberry Streets, which is the land formerly owned by the Blaekstone Mnfg. Co. and contains twenty-four & 67-100 rods of land more or less.” The quantity of land mentioned in this devise is such as to include the land under the ell, up to the line of the testator’s original purchase. In 1897 the testator sold and conveyed this lot at the corner of William and Mulberry Streets to Richard and Catherine I. Golden, except that he made the length of the lot running from Mulberry Street along William Street only one hundred and two feet, leaving twenty-three feet between tbe line thus established and the westerly line of his first purchase, upon which unconveyed portion stood the greater part of the ell and all of the barn. The question is, Where is the westerly line of the house lot devised to the testator’s wife ?

It is plain that the description of the appurtenant land by metes and bounds is incorrect, for there can be no doubt that the house and land appurtenant included at least all the land under the house, the ell as well as the older part of the house. It follows with equal certainty that the description of the land mentioned in the third clause, by a reference to its quantity and the source from which he obtained it, is also inaccurate. The intention of the testator that his wife 'should have the house and the land under it, and the land which properly belonged with it, is too plain to admit of question,- and other language in the will must yield to this provision. Inasmuch as the other language that would fix the boundary line, if it stood alone, is erroneous both in the description of the devise to the widow and in that contained in the third clause, we are left to determine as well as we can, where to establish the line which will include the land which is appurtenant to the house, as the testator understood it. As the land next westerly of the ell was always used with the ell as a passageway to the clothes yard, and for a path to the barn, and as the barn was always used with the house, being connected with different parts of it by a path and by a plank walk, it would be too narrow a construction to hold that there was no land appurtenant to the house on the west, outside of the walls of the ell. The land which was retained by the testator when he sold the lot at the corner of William and Mulberry Streets extends only to a line between fifteen and sixteen feet westerly of the line of the ell, and apparently not more than three or four feet westerly of the corner of the barn. The previous use of the property by the testator and his family, together with a sale of the corner lot mentioned in the third clause after the will was made, with a boundary leaving twenty-three.feet of the lot to be used as it had been used, and the occupation of the testator afterwards until his death, with no change in his will, are indications that he intended to include in the devise to his wife, not merely the land under the ell, but also a reasonable quantity westerly of it, which would include the barn, and leave the boundary a straight line from front to rear, as shown in the deed to Richard and Catherine I. Golden.

We are of opinion that the land in controversy was included in the devise to the testator’s wife. The ruling requested in favor of the petitioners should have been given, and a decree is to be entered in their favor accordingly.

So ordered.