19 A. 242 | R.I. | 1890
This is assumpsit for $3,000 paid by the plaintiff to the defendant on account of a contract between them for the purchase and sale of a farm in the town of Warren in this State. The contract was entered into in July, A.D. 1887. By it the plaintiff agreed to buy, and the defendant to sell, the farm for $10,000, the defendant representing her title to be good. The plaintiff paid the $3,000 in August, before the deed was made, to bind the bargain, as was said. February 23, A.D. 1888, the defendant tendered a warranty deed of the farm in fulfilment of the contract, which was refused, the plaintiff meanwhile, on examination of the title, having been advised that the title to a part of the farm was bad. The plaintiff demanded a return of the $3,000, and, the defendant refusing to return it, brought this action. At the trial in the Court of Common Pleas it was admitted that a part of the farm, as to which part the plaintiff claimed the title to be defective, to wit, about a third of the farm, came to the defendant by mesne conveyances under the will of one Nathan Simmons, dated October 24, 1866, and admitted to probate April 13, 1867, said Simmons being then deceased. The question of title depends on the construction *690 which is to be given to the two following clauses of said will, to wit:
"Second. I give, devise, and bequeath to my wife, Abby Simmons, all my real and personal estate or property of every kind and nature, wheresoever the same may be found, or in whatsoever the same may consist, including as well any that I may acquire subsequently to the date of this will as that which I am now possessed of, to her and her only.
"Third. I give, devise, and bequeath, and it is my will that whatever of my said estate, real, personal, and mixed, heretofore given, devised, and bequeathed to my wife, Abby Simmons, that shall or may remain at her death, shall go to and be the property of my sister, Hannah B. Simmons."
The part of the farm in question belonged to said Nathan Simmons when he made said will, and passed under it by said clauses, or the first of them. It came to the defendant by deed from said Abby Simmons, given after the probate of the will, and by deed from her grantee. Said deeds were not put in evidence, but it was assumed that they were sufficient to convey said part of the farm absolutely in fee simple, if said Abby had power under the will so to convey it, the only question made in respect thereto being whether she had such power.
The court below ruled that she took under the will only an estate for life, and had no power to dispose of anything more. The defendant excepted. Another defence was set up, but the jury found for the plaintiff. The case is before us on petition for new trial for error in the aforesaid ruling, and on the ground that the verdict is against the evidence and the weight thereof.
We think there can be no doubt that the first of said clauses, if it stood alone, would pass the testator's real estate to his widow, Abby Simmons, absolutely in fee simple. There are no words of inheritance, but such words are not necessary in a will to pass a fee, if an intent to pass a fee be apparent without them. Ordinarily a devise of "all my estate," or of "my estate," will pass a fee if the testator has it. Arnold v.Lincoln,
Our conclusion is, that said Abby Simmons did have power, under her husband's will, to sell and convey the land in question. *692 and that the court below erred in ruling the contrary. Because of such error a new trial will be granted. The other question presented by the petition we deem it unnecessary to consider.
Petition granted.