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Every student of the law of Real Property should read this sketch. First printed in the American Law Review, October, 1875, and Subsequently Reprinted by the Massachusetts Insurance Company, 1885.

OF

F THE locality of the parcel of real estate, the history of the title of which it is proposed to relate, it may be sufficient to say that it lies in Boston within the limits of the territory ravaged by the great fire of November 9th and 10th, 1872. In 1860 this parcel of land was in the undisturbed possession of Mr. William Ingalls, who referred his title to it to the will of his father, Mr. Thomas Ingalls, who died in 1830. Mr. Ingalls, the elder, had been a very wealthy citizen of Boston and when he made his will, a few years before his death, he owned this one parcel of real estate, worth about $50,000, and possessed, in addition, personal property to the amount of between $200,000 and $300,000. By his will he specifically devised this parcel of land to his wife, for life, and upon her death to his only child, the William Ingalls before mentioned, in fee, to whom, after directing his executor to

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pay to two nephews, William and Arthur Jones, the sum of $25,000 each, he gave also the large residue of his property. After the date of his will, however, Mr. Thomas Ingalls engaged in some unfortunate speculations, and upon the settlement of his estate the personal property proved to be barely sufficient for the payment of his debts, and the nephews got no portion of their legacies. The real estate, however, afforded to the widow a comfortable income, which enabled her during her life to support herself in a respectable manner. Upon her death, in 1845, the son entered into possession of the estate, which had gradually increased in value; and he had been enjoying for fifteen years a handsome income derived therefrom, when he was one day surprised to hear that the two cousins, whom his father had benevolently remembered in his will, had advanced a claim that this real estate should

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be sold by his father's executor, and the proceeds applied to the payment of their legacies. This claim, now first made thirty years after the death of his father, was of course a great surprise to Mr. Ingalls. He had entertained the popular idea that twenty years' possession effectually cut off all claims. Here, however, were parties after thirty years' undisputed possession by his mother and himself, setting up in 1860 a claim arising out of the will of his father, that will having been proved in 1830. Nor had Nor had Mr. Ingalls ever dreamed that the legacies given to his cousins could in any way have precedence over the specific devise of the parcel of real estate to himself. It was, as a matter of common sense, so clear that his father had intended by his will first to provide for his wife and son, and then to make a generous gift out of the residue of his estate to his nephews, that during the thirty years that had elapsed since his death it had never occurred to any one to suggest any other disposal of the property than that which had been actually made. Upon consulting with counsel, however, Mr. Ingalls learned that although the time within which most actions might be brought was limited to a specified number of years, there was no such limitation affecting the bringing of an action to recover a legacy. See Mass. Gen. St. c. 97, § 22; Kent y. Dunham, 106 Mass. 586, 591; Brooks v. Lynde, 7 Allen, 64, 66. that as his father's will

He also learned He also learned gave him, after

his mother's death, the same estate that he would have taken by inheritance had there been no will, the law looked upon the devise to him as void, and deemed him to have taken the estate by descent. What he had supposed to be a specific devise of the estate to him was then a void devise, or no devise at all; and his parcel of real estate, being in the eye of

the law simply a part of an undevised residue, was of course liable to be sold for the payment of the legacies contained in his father's will. It was assets which the executor was bound to apply to that purpose. This exact point had been determined in the then recent case of Ellis v. Page, 7 Cush. 161; and Mr. Ingalls was finally compelled to see the estate, the undisputed possession of which he had enjoyed for so many years, sold at auction by the executor of his father's will for $135,000, not quite enough to pay the legacies to his cousins, which legacies, with interest from the expiration of one year after the testator's death, amounted at the time of the sale in 1862 to $143,000. The Messrs. Jones themselves purchased the estate at the sale, deeming the purchase a good investment of the amount of their legacies, and Mr. Ingalls instituted a system of stricter economy in his domestic expenses, and pondered much on the uncertainty of the law and the mutability of human affairs.

By one of those curious coincidences which so often occur, Messrs. William and Arthur Jones had scarcely begun to enjoy the increased supply of pocket money afforded them by the rents of their newly acquired property, when they each received one morning a summons to appear before the Justices of the Superior Court, "to answer unto John Rogers in a writ of entry," the premises described in the writ being their newly ac quired estate.

The Messrs. Jones were at first rather startled by this unexpected proceeding; but as they had, when they received their deed from Mr. Ingalls' executor, taken the precaution to have the title to their estate examined by a conveyancer, who had reported that he had carried his examination as far back as the beginning of the century, and had found the title

perfectly clear and correct, they took courage, and waited for further developments. It was not long, however, before the facts upon which the writ of entry had been founded were made known. It appeared that for some time prior to 1750 the estate had belonged to one John Buttolph, who died in that year, leaving a will in which he devised the estate "to my brother Thomas, and, if he shall die without issue, then I give the same to my brother William." Thomas Buttolph had held the estate until 1775, when he died, leaving an only daughter, Mary, at that time the wife of Timothy Rogers. Mrs. Rogers held the estate until 1790, when she died, leaving two sons and a daughter. This estate she devised to her daughter, who subse quently, in 1800, conveyed it to Mr. Thomas Ingalls, before mentioned. Peter Rogers, the oldest son of Mrs. Rogers, was a non compos, but lived until the year 1854, when he died at the age of 75. He left no children, having never been married. John Rogers, the demandant in the writ of entry, was the oldest son of John Rogers, the second son of Mrs. Mary Rogers, and the basis of the title set up by him was substantially as follows: He claimed that under the decision in Hayward v. Howe, 12 Gray, 49, the will of John Buttolph had given to Thomas Buttolph an estate tail, the law construing the intention of the testator to have been that the estate should belong to Thomas Buttolph and to his issue as long as such issue should exist, but that upon the failure of such issue, whenever such failure might occur, whether at the death of Thomas or at any subsequent time, the estate should go to William Buttolph. It had also been decided in Corbin v. Healy, 20 Pick. 514, 516, that an estate tail does not descend in Massachusetts, like other real estate, to all the children of the

deceased owner, in equal shares, but, according to the old English rule, exclusively to the oldest son, if any, and to the daughters only in default of any son; and it had been further decided in Hall v. Priest, 6 Gray, 18, 24, that an estate tail cannot be devised or in any way affected by the will of a tenant in tail. Mr. John Rogers claimed then that the estate tail given by the will of John Buttolph to Thomas Buttolph had descended at the death of Thomas to his only child, Mary Rogers; that at her death, instead of passing, as had been supposed at the time, by virtue of her will, to her daughter, that will had been wholly without effect upon the estate, which had, in fact, descended to her oldest son, Peter Rogers. Peter Rogers had indeed been disseized in 1800, if not before, by the acts of his sister in taking possession of and conveying away the estate; but, as he was a non compos during the whole of his long life, the statute of limitations did not begin to run against him, and his heir in tail, namely, John Rogers, the oldest son of his then deceased brother, John, was allowed by Mass. Gen. St. c. 154, § 5, ten years after his uncle Peter's death, within which to bring his action. As these ten years did not expire until 1864, this action, brought in 1863, was seasonably commenced; and it was prosecuted with success, judgment in his favor having been recovered by John Rogers in 1865.

The case of Rogers v. Jones was naturally a subject of remark among the legal profession; and it happened to occur to one of the younger members of that profession that it would be well to improve some of his idle moments by studying up the facts of this case in the Suffolk Registries of Deeds and of Probate. Curiosity prompted this gentleman to extend his investigation beyond the facts directly involved in the case, and

to trace the title of Mr. John Buttolph back to an earlier date. He found that Mr. Buttolph had purchased the estate in 1730 of one Hosea Johnson, to whom it had been conveyed in 1710 by Benjamin Parsons. The deed from Parsons to Johnson, however, conveyed the land to Johnson simply, without any mention of his "heirs"; and the young lawyer, having recently read the case of Buffum v. Hutchinson, 1 Allen, 58, perceived that Johnson took under this deed only a life estate in the granted premises, and that at his death the premises reverted to Parsons or to his heirs. The young lawyer, being of an enterprising spirit, thought it would be well to follow out the investigation suggested by his discovery. He found, to his surprise, that Hosea Johnson did not die until 1786, the estate having in fact, been purchased by him for a residence when he was twenty-one years of age, and about to be married. He had lived upon it for twenty years, but had then moved his residence to another part of the city, and sold the estate, as we have seen, to Mr. Buttolph. When Mr. Johnson died, in 1786, at the age of ninety-seven, it chanced that the sole party entitled to the reversion, as heir of Benjamin Parsons, was a young woman, his granddaughter, aged eighteen, and just married. This young lady and her husband lived, as sometimes happens, to celebrate their diamond wedding in 1861, but died during that year. As she had been under the legal disability of coverture from the time when her right of entry upon the estate, as heir of Benjamin Parsons, first accrued, at the termination of Johnson's life estate, the provision of the statute of limitations, before cited, gave her heirs ten years after her death, within which to bring their action. These heirs proved to be three or four people of small means, residing in remote parts of the

United States. What arrangements the young lawyer made with these parties and also with a Mr. John Smith, a speculating moneyed man of Boston, who was supposed to have furnished certain necessary funds, he was wise enough to keep carefully to himself. Suffice it to say that in 1869 an action was brought by the heirs of Benjamin Parsons to recover from Rogers the land which he had just recovered from William and Arthur Jones. In this action the plaintiffs were successful, and they had no sooner been put in formal possession of the estate than they conveyed it, now worth a couple of hundred thousand dollars, to the aforesaid Mr. John Smith, who was popularly supposed to have obtained in this case, as he usually did in all financial operations in which he was concerned, the lion's share of the plunder. The Parsons heirs, probably, realized very little from the results of the suit; but the young lawyer obtained sufficient to establish him as a brilliant speculator in suburban lands, second mortgages, and patent rights. Mr. Smith had been but a short time in possession of his new estate when the great fire of November, 1872, swept over it. He was, however, a most energetic citizen, and the ruins were not cold before he was at work rebuilding. He bought an adjoining lot in order to increase the size of his estate, the whole of which was soon covered by an elegant block, conspicuous on the front of which may now be seen his initials, "J. S.," cut in the stone.

While the estate which had once belonged to Mr. William Ingalls was passing from one person to another in the bewildering manner we have endeavored to describe, Mr. Ingalls had himself, for a time, looked on in amazement. It finally occurred to him, however, that he would go to the root of this matter

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