Kempton v. Swift , 43 Mass. 70 ( 1840 )

Wilde, J.

The demandants are the heirs of Charles Church, the former owner of the demanded premises, and of Keturah Church his widow, and are entitled to recover, unless the tenant Deborah H. Wayman has derived a good title to the premises under the deed to her from the other tenant Asa Swift, administrator de bonis non on the estate of the said Charles Church. And it is admitted that her title is valid, unless the premises were by a previous deed conveyed by the said K eturah, administratrix on the said Charles Church’s estate, to one Jfseph Howland. By that deed the said Church’s real estate was conveyed, and “ the residue of the deceased’s dwellinghouse that was not set off to his widow as her power of thirds in said estate ; it is the whole of the privileges in the said house, well and yard,'that was not set off to said widow, reference always being had to the returns and bounds of the widow’s thirds for a particular description of the bounds of the premises.” By this description it is very clear that the reversion of the estate which had been before assigned to the widow did not pass. It is true that an exception in a deed, when expressed in doubtful terms, is to be construed most favorably to the grantee. But the description of the land conveyed by the deed in question is perfectly clear, and can admit of but one construction. The land conveyed is expressly bounded by the bounds of the widow’s thirds. This reference to boundaries conclusively excludes any right or interest in the widow’s thirds.

There is another defect in the demandant’s title, which confirms, if any confirmation be necessary, the construction we give to the said deed. By St. 1784, c. 2, it was provided that the housing and lands assigned to the widow of an insolvent debtor should be sold at the expiration of her term, and be distributed among his creditors, unless the reversion should be sold by the executor or administrator, and distributed with the other estate, which the judge might order if he saw fit, upon application therefor.

No application was made to the judge of probate for license to sell the reversion in the demanded premises, and no order to tnat effect was by him made. The administratrix, therefore, was not authorized to make sale of the reversion, and it is manifest, by the language of the deed, that she never intended to make any such sale.

The estate assigned to her was regularly sold, after the expi ration of her term, by the administrator de bonis non, to Deborah H. Wayman, the tenant; and her title under that conveyance is unquestionably valid.

Demandants nonsuit.