1 Sumn. 121 | U.S. Circuit Court for the District of Maine | 1831
This case having come on to be heard by consent of the parties upon the bill and answer, and having been submitted without argument, the object of all the parties being to obtain a decree upon the merits, I consider all objections as to the want of parties, and all formal objections whatsoever as waived. I am not certain, however, that I have a complete understanding of all the points intended to be raised by the parties. But, as far as I comprehend them, I shall proceed to state what I ‘consider the legal results in a very brief manner.
The first question is, whether, under the conveyance of Thomas Robison, the testator, to Arthur MeLellan, and the conveyance of the latter to Stephen Codman, Thomas Robi-son, the son, and Robert Ilsley, the estate of Thomas Robison, the testator, in the premises passed to Codman, Robison, and Ilsley, as joint tenants or as tenants in common. My opinion is, that, under the statute of Massachusetts respecting conveyances of this sort, —St. March 9, 1786, (1785, c. 62), — the grantees took the estate as tenants in common, and not as joint tenants, upon the trusts specified in the conveyances. And if it. had been otherwise, the conveyance of Stephen Codman to Henry Codman would have been a complete severance of the joint tenancy, So that Stephen Codman, Thomas Robison, the son, and Robert Ilsley, each took one third part of the premises, as tenants in common in fee, in trust; and the trust, as to Stephen Codman, has now devolved on his son, Henry Codman.
The next question is, whether Stephen Cod-man is entitled to hold, as tenant by the courtesy, the portion of the said premises, so conveyed in trust, which came to his wife as heir and devisee of Thomas Robison, the father. I think he is. By the common law, the husband is entitled to courtesy ini the trust estate of his wife, in the same manner as he would be if it were a legal estate. Our law is, as I understand it, the same.
The next question is, whether Stephen Cod-man is entitled to any portion of the same trust estate, as heir of his son Richard C. Codman. I am of opinion that he is not. The estate descended to Richard C. Codman from his mother on her decease, and he died under age, unmarried, and without issue. Under such circumstances, by the statute of Maine, as well as of Massachusetts, regulating descents, I think his share passed, not to his father, but to the other children of his mother. If he had died over age, it would have been otherwise, and his father would have been his heir.
The next question is, whether John P. Boyd, as administrator of Thomas Robison, the son, has any right to sell any more of the trust estate conveyed to his intestate as aforesaid, by MeLellan, than .belonged to him as heir and devisee of his father, Thomas Robison; in other words, has he a right to sell the whole one third part vested in his intestate by the conveyance of MeLellan, or only his interest in the trust estate according to the will of his father. My opinion is, that Boyd can sell no more of the estate than what belonged to his intestate as devisee of his father. An estate held by an intestate in trust for other persons, is not liable to be sold for payment of his own debts.
The next question is, whether Elizabeth Robison, the widow of Thomas Robison, the son, is entitled to dower in any part of the estate so held by her husband, under the conveyance of MeLellan, and, if in any, what part. So far as her husband held the property merely in trust, it is not subject to dower, for estates held by the husband in trust are not liable to the dower of his wife. The only point worthy of consideration is, whether, so far as respected his own share in the trust estate under his father’s will, there was not a merger of the trust estate in the legal estate, so as to unite them, and give him pro tanto a seisin in fee discharged of the trust. I rather think, that this is the true legal result, as the legal estate as to his share is coextensive with the trust estate, that is, each is a fee. If so, Mrs. Robison would have been entitled to her dower in such share of her husband, (which the bill states to be one eighth part,) if her husband had survived his mother. But, as during the lifetime of his mother he -was seised only of his share in the remainder or reversion after her decease, his wife can take nothing in the premises by way of dower, for dower cannot be of a mere remainder or reversion.
I am not aware of any other points intended to be raised by the parties. But if there be, it will be for them to suggest them before a decree is made.
Upon the foregoing views I am of opinion, that there ought to be an injunction to John P.Boyd against selling anymore of the trust estate, than by the devise of the testator came to the share of his son, Thomas Robison, Jr.; that the plaintiffs are entitled to have a decree for their respective shares in the trust estate to be conveyed to them; that Stephen Codman has no title in the premises, except as tenant by the courtesy; and that Elizabeth Robison has no right or title to dower in the premises. The case ought to be referred to a master to consider and report, what conveyances ought to be made, and by whom, to the plaintiffs in the premises; and in the mean time, all further orders are to be reserved until the coming in of the master’s report.
The district judge concurs in this opinion, and therefore let a decree be entered accordingly.
R. C. Codman was in fact over twenty-one years of age at the time of his death; and the bill was subsequently amended so as to conform to the fact.
