Kimball v. Withington , 141 Mass. 376 ( 1886 )

W. Allen, J.

The petitioner, being seised in fee of a parcel of land containing twenty-five acres, on which were two dwelling-houses, one of which had been assigned to his father’s widow as dower, conveyed an undivided half of the reversion of the dower estate to his brother. Afterwards the probate guardian of the petitioner, by license of the Probate Court, sold and conveyed the land, with one dwelling-house thereon, “ reserving ” the house occupied by the widow. The question is, whether the reversion expectant on the dower estate passed by the deed.

The description of the land in the deed includes the locus; one dwelling-house is mentioned as conveyed, and the other, with certain privileges appurtenant to it, and a shed with the land under it, not included in the dower estate, are said to be reserved. The house, as set off to the widow in dower, included the land under it, and the same effect must be given to the words in the deed. The word “ reserving ” must be construed as “ excepting,” because the widow had a life estate in the house, which could not be reserved to the grantor, but only excepted out of the grant, and the reservation of the shed and the land under it could only operate as an exception, and not as a reservation. The exception of the house and shed includes the entire estate in the land under them, unless there is something to limit it to a lesser estate. It is said that the exception is of the dower estate, or of an estate for the life of the widow. The language of the deed does not point to this in regard to the house. The natural expression of that intention would be to except or reserve the widow’s right of dower, as in Canedy v. Marcy, 13 Gray, 373, or to convey the residue of the whole estate not set off to the widow as her dower, as in Kempton v. Swift, 2 Met. 70. The same construction must be given to the language used as applied to the house and its appurtenances, and as applied to the shed and the land under it, and it would be a wholly unwarrantable construction to limit the exception of the latter, which did not belong to the dower estate, to an estate for the life of the widow.

No inference contrary to this can be drawn from the circumstances of the sale, so far as they are disclosed in the statement of facts. The guardian’s petition for leave to sell alleged that it was necessary to sell part of the estate, and prayed for leave to sell the whole, and the license was to sell the whole of the real estate of the ward. The property to be sold was described in the notice of sale as a farm containing twenty-five acres, a house, barn, and other buildings. It mentioned but one house; it did not mention any right of dower, or any reversion, or any undivided interest of the ward. The ward had the entire interest in severalty in all but the house occupied by the widow and its appurtenances, and owned the reversion of that in common with his brother. There is nothing disclosed to indicate any intention to sell the undivided interest in the reversion; and when, under these circumstances, a deed was given, making no mention of dower or reversion, and expressly reserving, not only the house with appurtenances occupied by the widow, in which she had a life estate and the petitioner and his brother the reversion, but also, by the same word, another building and the land under it, in which the petitioner had the entire estate, and speaking of the owners of the house, we cannot construe the deed otherwise than as excepting out of its operation the buildings and the land covered by them, so that no estate in that part of the premises would pass by it. See Gale v. Coburn, 18 Pick. 397; Stockwell v. Couillard, 129 Mass. 231; Ashcroft v. Eastern Railroad, 126 Mass. 196.

Judgment affirmed.