34 Me. 443 | Me. | 1852
Jacob Clapp and Harvey Clapp, had an indefeasible title to the premises, as early as May 6, 1826, the day on which the release of Benjamin Hawes and James Hawes was made. No change in their title having taken place, they were the owners and tenants in common and undivided in equal moieties till the death of Jacob Clapp, which occurred in 1832. Jacob Clapp, by his will, dated May 8, 1832, and approved July 3, 1832, devised to his daughter Sukey Smith, the wife of the plaintiff, the improvement of the entire premises, during her life ; and the remainder in the whole to Harvey Clapp ; he also devised and bequeathed to Harvey Clapp, one fourth part of all the residue of his property, both real and personal, of which he was the owner at the time of his decease ; and the remaining portion of his property, real and personal, he devised and bequeathed to two other sons.
The death and the will of Jacob Clapp could not alone divest Harvey Clapp of the interest, which he previously had under the deed from Benjamin and James Hawes, in the premises. But it is a doctrine well established in equity and in law, that if one accept a beneficial interest under a will, he thereby bars himself from setting up a claim, which will prevent its full operation. Thellason v. Woodford, 13 Ves. 209; Hyde v. Baldwin, 17 Pick. 303 , Weeks v. Patten, 18 Maine, 42.
By the provisions of the will, instead of an absolute estate, in an undivided half of the premises, which he owned, Harvey Clapp obtained the whole thereof, after the termination of
This is sufficient to show, that he accepted the interest under the will, as beneficial to him, and he is held by the principle adverted to, to confirm and ratify every other part of the will; and he cannot set up his former claim, though in other respects legal and well founded. In addition to this, the mortgage deed from Sidney Smith to Harvey Clapp, which is in the case, contains a recital that the premises therein described, which are identical with those in controversy, were conveyed on the same day to Sidney Smith, by Harvey Clapp ; and the right of Sukey Smith is excepted from the conveyance, and from the covenants of general warranty. The right of Sukey Smith under the will, which Harvey Clapp had confirmed, was the improvement of the premises during her life. The only interest of Harvey Clapp was under this mortgage deed, and he accepted it according to its terms. He is, therefore, barred of his original claim to one half the premises. He had no power to controvert the right of Sukey Smith under her father’s will, or to deprive her or her husband who was in possession, of any interest, which either of them had, by the operation of his original title in the premises ; or to enter into the possession of the same, during her life.
Harvey Clapp is proved to have died in the year 1840. Have the proceedings since his death changed the rights of the plaintiff? Edmund W. Clapp first obtained letters of administration from a Probate Court in this State, on April 2, 1850. But as administrator of the goods and estate of Harvey Clapp, who resided in Massachusetts at the time of his death and
Before this judgment, Edmund W. Clapp had no power as administrator of the goods and estate of Harvey Clapp in this State. Goodwin v. Jones, 3 Mass. 514. He was a stranger to the premises till that time. This judgment was limited in its effects to its own legitimate operations. It had no authority by implication. The one, in whose favor it was, could have no rights under it, beyond the power, which it conferred under the statute. It gave him no right to possession, until after two months, from the time it was rendered. The possession under it, given to one of the defendants as the agent of Edmund W. Clapp, was subsequent to the time alleged in the writ in this action, when a part of the acts complained of, were committed. , The case finds no other time, when they were actually done. And the possession given by the officer afterwards could be no justification.
If the alleged trespass was after the possession under the officer, as it is said for the defendants in argument, that it was, it could have no effect to relieve them from liability. The judgment was against Sidney Smith, upon his mortgage.
The plaintiff being in possession at the time of the alleged ' trespass and for a long time before, and Edmund W. Clapp, as administrator or otherwise having no present interest in the premises as against the plaintiff, or not claiming under any one, having such interest, he could give no rights to the defendants to perform the acts done. They were an injury to the plaintiff’s possession and a violation thereof.
Judgment upon the default, and
damages as entered on the docket.