Howe v. Ray , 110 Mass. 298 ( 1872 )

Chapman, C. J.

The ruling that the complainant could maintain her case under her complaint as to the first described tract was correct. The will of John Howe, her husband, bequeathed to her “ in trust, and for use as hereinafter specified, all my real and personal estate of every description.” It constitutes her the sole guardian of his children during their legal minority, “ expecting her to provide for them in all respects, with the help of said property, to the best of her ability,” as if he were living. It provides that she shall “ hold, manage and dispose of the said property, both principal and income, in such a manner as her necessities and substantial comfort, with those of our minor children, may justly require,” and that for these purposes she shall hold, manage and control the property during her natural life. Being in possession under this devise, and having a right of possession, she is entitled to maintain this process as to the first tract. She is in possession under the devise in her own right, as well as in trust for her children, with power to sell, if in her judgment her substantial comfort and that of her children shall require it. So far as she holds the property in trust for her children, she is the proper party tc institute this process, and must receive the damages, to be accounted for under the trust. Davis v. Charles River Branch Railroad Co. 11 Cush. 506. The respondents have no interest "n the question whether she has given bond, for her liability ia to others, and not to them.

As she has been in possession for more than three years, and the respondents have flowed the land during all that time, it was correctly held that she may recover past damages, as the statute provides.

As to the second tract, it was correctly ruled that John Howe took a fee in one undivided half of it upon the death of his two children unmarried and without issue, and that his interest passed to his wife under the devise, with his other land. The other undivided half passed from the two surviving children to the complainant by their deed executed February 2, 1872. Their right to the damage occasioned by the previous flowing was a chose in action, which might be assigned in equity, but not in law, without the assent of the respondents. She might maintain a process for it in their names. Charles v. Monson & Brimfield Manuf. Co. 17 Pick. 70. Walker v. Oxford Woollen Manuf. Co. 10 Met. 203. She has included in her complaint these damages, and the respondents have wisely waived any technical objection to her claim. It saves a separate bill of costs, and the result of the case will conclude her assignors as well as herself. This waiver being made, she may recover what was assigned to her.

She is entitled to maintain her complaint and have judgment for past damages. It is proper also, under the Gen. Sts. e. 149, § 20, that the jury should “ also ascertain and determine by their verdict what sum ” would be “ a just and reasonable compensation ” for future damages, both annual and in gross. If her title and right were in fact limited to a life interest, as alleged in the complaint, it might affect the subsequent recovery and disposition of the sums so determined; but the right to have them ascertained is not dependent upon the possession of an absolute fee by the complainant. Faine v. Woods, 108 Mass. 160.

Warrant to issue.