Whittaker v. Whittaker , 99 Mass. 364 ( 1868 )

Foster, J.

The question is, whether any property remains to be administered under the antenuptial settlement between Mr. and Mrs. Whittaker, dated October 26, 1830, so that a trustee ought to be appointed pursuant to the provisions of that instrument.

The property embraced therein is the share or portion of Mrs. Whittaker in the estate of her father, John Holland, under his will dated August 23,1822, “ which share or portion she is entitled to receive or become possessed of, either at the arrival at lull age of her youngest brother, or at the decease of her mother.” It is agreed that the mother died July 12, 1849; and that the only property remaining to be affected by the marriage settlement is one fifth of a warehouse on Long Wharf in Boston Mrs. Whittaker herself died April 22, 1850.

The will of John Holland has twice received the construction of this court. Adams v. Cruft, 14 Pick. 16. Holland v. Cruft, 3 Gray, 162. It has been held that Mrs. Whittaker took during (he life of her mother an estate tail in remainder in one fifth of the real estate of John Holland. It has been likewise decided that, during the continuance of the life estate of Mrs. Holland, Mrs. Whittaker could not bar this entail; because only a tenant in tail in possession, and not one in remainder, could execute a deed effectual for this purpose, under the St. of 1791, c. 60, § 1. Holland v. Cruft, 3 Gray, 182. So far, there is no controversy between the parties as to the legal principles applicable to the case.

But the petitioner contends that Mrs. Whittaker did bar the entail, and that consequently the remainder after her death became subject to the provisions of the marriage settlement. He relies upon the effect of the successive instruments which she executed. They will be considered in their order.

It is claimed that the marriage settlement, upon the death of Mrs. Holland, “ operated by estoppel to vest the estate in fee in the then trustee, and to bar the entail.” We are aware of no authority for the position that a deed which, when made, does not bar an entail, can afterwards do so by estoppel. The conveyance by a tenant in tail which the statute of 1791 provided should have that effect was a substitute for a common recovery. It passes more than the grantor’s own title; for it cuts off the rights of subsequent parties in interest. This is done by virtue of the statute, and not by estoppel. Furthermore, the marriage settlement contains no covenants which could operate to create an estoppel, and conveys only the share or portion of Catharine Holland, afterwards Mrs. Whittaker, in her father’s estate. We discover no evidence of an intention thereby to bar the entail. The words of description used must be construed with reference to the extent of the grantor’s power to convey. She was not then competent to bar the entail, and we cannot infer that she intended to do so.

The next instrument relied upon is dated March 21,1850, and was executed by Mrs. Whittaker alone, without the joinder of her husband. It manifests no intention to cut off the entail; and was valid merely as an execution of the power reserved in the settlement. A married woman whose common law deed was wholly void and ineffectual to convey her own estate could not, of course, without her husband, bar an entail and defeat his possible or actual tenancy by the curtesy in the entailed estate. Obviously, the instrument was made for no such purpose, and could have no such effect.

The indenture of April 2, 1850, is only a conveyance from Mansfield, the former trustee, to Plimpton, bis successor in the trust. It does not purport to enlarge or change the trust property, but simply substitutes one trustee for another. It contains no words of grant or covenant from Mrs. Whittaker.

It seems to us that no attempt was made by Mrs. Whittaker in her life to bar this entail; certainly that it has never been done effectually. The consequence is, that her life interest only in the real estate was held in trust, and that since her death there remains no property to pass under the settlement to a new trustee. Petition dismissed.