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BARROWS ON NEGLIGENCE. 1899. 1 vol.
WEST PUBLISHING CO., St. Paul, Minn.
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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.
F THE locality of the parcel of pay to two nephews, William and Arthur
real estate, the history of the title Jones, the sum of $25,000 each, he gave of which it is proposed to relate, it may
also the large residue of his property. be sufficient to say that it lies in Boston After the date of his will, however, Mr. within the limits of the territory ravaged Thomas Ingalls engaged in some unby the great fire of November 9th and fortunate speculations, and upon the 10th, 1872. In 1860 this parcel of land settlement of his estate the personal was in the undisturbed possession of Mr. property proved to be barely sufficient William Ingalls, who referred his title for the payment of his debts, and the to it to the will of his father, Mr. Thom- nephews got no portion of their legacies. as Ingalls, who died in 1830. Mr. In- The real estate, however, afforded to the galls, the elder, had been a very wealthy widow a comfortable income, which encitizen of Boston and when he made his abled her during her life to support herwill, a few years before his death, he self in a respectable manner. Upon her owned this one parcel of real estate, death, in 1845, the son entered into posworth about $50,000, and possessed, in session of the estate, which had gradualaddition, personal property to the amountly increased in value; and he had been of between $200,000 and $300,000. By enjoying for fifteen years a handsome his will he specifically devised this par- income derived therefrom, when he was cel of land to his wife, for life, and up- one day surprised to hear that the two on her death to his only child, the Wil- cousins, whom his father had benevoliam Ingalls before mentioned, in fee, lently remembered in his will, had adto whom, after directing his executor to vanced a claim that this real estate should
be sold by his father's executor, and the the law simply a part of an undevised proceeds applied to the payment of their residue, was of course liable to be sold legacies. This claim, now first made for the payment of the legacies containthirty years after the death of his father, ed in his father's will. It was assets was of course a great surprise to Mr. which the executor was bound to apply Ingalls. He had entertained the popu- to that purpose. This exact point had lar idea that twenty years' possession ef- been determined in the then recent case fectually cut off all claims. Here, how- of Ellis v. Page, 7 Cush. 161; and Mr. ever, were parties after thirty years' un- Ingalls was finally compelled to see the disputed possession by his mother and estate, the undisputed possession of himself, setting up in 1860 a claim aris- which he had enjoyed for so many years, ing out of the will of his father, that will sold at auction by the executor of his having been proved in 1830. Nor had father's will for $135,000, not quite Mr. Ingalls ever dreamed that the lega- enough to pay the legacies to his cousins, cies given to his cousins could in any which legacies, with interest from the way have precedence over the specific expiration of one year after the testadevise of the parcel of real estate to him- tor's death, amounted at the time of the self. It was, as a matter of common sale in 1862 to $143,000. The Messrs. sense, so clear that his father had in- Jones themselves purchased the estate at tended by his will first to provide for the sale, deeming the purchase a good his wife and son, and then to make a investment of the amount of their legagenerous gift out of the residue of his cies, and Mr. Ingalls instituted a system estate to his nephews, that during the of stricter economy in his domestic exthirty years that had elapsed since his penses, and pondered much on the undeath it had never occurred to any one certainty of the law and the mutability to suggest any other disposal of the of human affairs. property than that which had been ac- By one of those curious coincidences tually made. Upon consulting with which so often occur, Messrs. William counsel, however, Mr. Ingalls learned and Arthur Jones had scarcely begun to that although the time within which most enjoy the increased supply of pocket actions might be brought was limited to money afforded them by the rents of a specified number of years, there was their newly acquired property, when they no such limitation affecting the bringing each received one morning a summons of an action to recover a legacy. See to appear before the Justices of the SuMass. Gen. St. c. 97, § 22; Kent y. Dun- perior Court, “to answer unto John Rogham, 106 Mass. 586, 591; Brooks v. ers in a writ of entry," the premises deI.ynde, Allen, 64, 66. He also learned scribed in the writ being their newly acthat as his father's will gave him, after quired estate. his mother's death, the same estate that The Messrs. Jones were at first rather he would have taken by inheritance had startled by this unexpected proceeding; there been no will, the law looked upon but as they had, when they received the devise to him as void, and deemed their deed from Mr. Ingalls' executor, him to have taken the estate by descent. taken the precaution to have the title to What he had supposed to be a specific their estate examined by a conveyancer, devise of the estate to him was then a who had reported that he had carried his void devise, or no devise at all; and his examination as far back as the beginning parcel of real estate, being in the eye of of the century, and had found the title
perfectly clear and correct, they took deceased owner, in equal shares, but, courage, and waited for further develop- according to the old English rule, exments. It was not long, however, before clusively to the oldest son, if any, and to the facts upon which the writ of entry the daughters only in default of any had been founded were made known. son; and it had been further decided in It appeared that for some time prior to Hall v. Priest, 6 Gray, 18, 24, that an es1750 the estate had belonged to one tate tail cannot be devised or in any way John Buttolph, who died in that year, affected by the will of a tenant in tail. leaving a will in which he devised the Mr. John Rogers claimed then that the estate "to my brother Thomas, and, if estate tail given by the will of John Buthe shall die without issue, then I give tolph to Thomas Buttolph had descendthe
to my brother William." ed at the death of Thomas to his only Thomas Buttolph had held the estate un- child, Mary Rogers; that at her death, til 1775, when he died, leaving an only instead of passing, as had been supposed daughter, Mary, at that time the wife of at the time, by virtue of her will, to her Timothy Rogers. Mrs. Rogers held the daughter, that will had been wholly estate until 1790, when she died, leaving without effect upon the estate, which two sons and a daughter. This estate had, in fact, descended to her oldest son, she devised to her daughter, who subse. Peter Rogers. Peter Rogers had indeed quently, in 1800, conveyed it to Mr. been disseized in 1800, if not before, by Thomas Ingalls, before mentioned. Pe- the acts of his sister in taking possession ter Rogers, the oldest son of Mrs. Rog- of and conveying away the estate; but, ers, was a non compos, but lived until
as he was a non compos during the the year 1854, when he died at the age whole of his long life, the statute of of 75. He left no children, having never limitations did not begin to run against been married. John Rogers, the de- him, and his heir in tail, namely, John mandant in the writ of entry, was the Rogers, the oldest son of his then deoldest son of John Rogers, the second ceased brother, John, was allowed by son of Mrs. Mary Rogers, and the basis Mass. Gen. St. c. 154, § 5, ten years of the title set up by him was substan- after his uncle Peter's death, within tially as follows: He claimed that under which to bring his action. As these ten the decision in Hayward v. Howe, 12 years did not expire until 1864, this acGray, 49, the will of John Buttolph had tion, brought in 1863, was seasonably given to Thomas Buttolph an estate tail, commenced; and it was prosecuted with the law construing the intention of the success, judgment in his favor having testator to have been that the estate been recovered by John Rogers in 1865. should belong to Thomas Buttolph and The case of Rogers v. Jones was natto his issue as long as such issue should urally a subject of remark among the exist, but that upon the failure of such legal profession; and it happened to issue, whenever such failure might occur, occur to one of the younger members of whether at the death of Thomas or at that profession that it would be well to any subsequent time, the estate should improve some of his idle moments by go to William Buttolph. It had also studying up the facts of this case in the been decided in Corbin v. Healy, 20 Suffolk Registries of Deeds and of ProPick. 514, 516, that an estate tail does bate. Curiosity prompted this gentleman not descend in Massachusetts, like other to extend his investigation beyond the real estate, to all the children of the facts directly involved in the case, and
to trace the title of Mr. John Buttolph United States. What arrangements the back to an earlier date. He found that young lawyer made with these parties Mr. Buttolph had purchased the estate and also with a Mr. John Smith, a specin 1730 of one Hosea Johnson, to whom ulating moneyed man of Boston, who it had been conveyed in 1710 by Benja- was supposed to have furnished certain min Parsons. The deed from Parsons necessary funds, he was wise enough to to Johnson, however, conveyed the land keep carefully to himself. Suffice it to to Johnson simply, without any mention say that in 1869 an action was brought of his "heirs"; and the young lawyer, by the heirs of Benjamin Parsons to having recently read the case of Buffum recover from Rogers the land which he v. Hutchinson, 1 Allen, 58, perceived had just recovered from William and that Johnson took under this deed only Arthur Jones. In this action the plaina life estate in the granted premises, and tiffs were successful, and they had no that at his death the premises reverted sooner been put in formal possession of to Parsons or to his heirs. The young the estate than they conveyed it, now lawyer, being of an enterprising spirit worth a couple of hundred thousand thought it would be well to follow out dollars, to the aforesaid Mr. John Smith, the investigation suggested by his dis- who was popularly supposed to have obcovery. He found, to his surprise, that tained in this case, as he usually did in Hosea Johnson did not die until 1786, all financial operations in which he was the estate having in fact, been purchased concerned, the lion's share of the plunby him for a residence when he was der. The Parsons heirs, probably, realtwenty-one years of age, and about to ized very little from the results of the be married. He had lived upon it for suit; but the young lawyer obtained suftwenty years, but had then moved his ficient to establish him as a brilliant specresidence to another part of the city, and ulator in suburban lands, second mortsold the estate, as we have seen, to Mr. gages, and patent rights. Mr. Smith Buttolph. When Mr. Johnson died, in had been but a short time in possession 1786, at the age of ninety-seven, it of his new estate when the great fire chanced that the sole party entitled to the of November, 1872, swept over it. He reversion, as heir of Benjamin Parsonswas, however, a most energetic citizen, was a young woman, his granddaughter, and the ruins were not cold before he aged eighteen, and just married. This was at work rebuilding. He bought an young lady and her husband lived, as adjoining lot in order to increase the sometimes happens, to celebrate their size of his estate, the whole of which diamond wedding in 1861, but died dur- was soon covered by an elegant block, ing that year. As she had been under conspicuous on the front of which may the legal disability of coverture from the now be seen his initials, "J. S.," cut in time when her right of entry upon the
the stone. estate, as heir of Benjamin Parsons, first While the estate which had once beaccrued, at the termination of Johnson's longed to Mr. William Ingalls was passlife estate, the provision of the statute of ing from one person to another in the limitations, before cited, gave her heirs bewildering mantfer we have endeavored ten years after her death, within which to describe, Mr. Ingalls had himself, to bring their action. These heirs pror- for a time, looked on in amazement. ed to be three or four people of small It finally occurred to him, however, that means, residing in remote parts of the he would go to the root of this matter