McLaughlin v. Rice , 185 Mass. 212 ( 1904 )

Lathrop, J.

1. The first exception in this case and the first request for instructions raise the question whether, when land is conveyed by deed to A. and B., evidence is admissible to show that the grantees are husband and wife. We have no doubt that such evidence is admissible. If it were not, then a deed from a husband directly to his wife, which did not describe her as such, would be a valid deed, which could not for a moment be contended. In Morris v. McCarty, 158 Mass. 11, a deed was made to A. and B., the latter being described as the wife of A. It was held that as B. was not in fact the wife of A., the grantees did not take an estate by entireties. It is the fact and not the description or want of description which determines the question. The first exception must therefore be overruled, and the first request for instructions was properly refused.

2. The second request for instructions was not argued.

3. The third request for instructions was also properly refused. The deed being to a man and his wife, they took an estate by entireties, and not as tenants in common. The deed was executed in 1878, and as the law then stood the rights of the grantees, they being husband and wife, were the same as at common law. Gen. Sts. c. 89, §§ 13, 14. See also Pub. Sts. c. 126, §§ 5, 6. It was not until the St. of 1885, c. 237, § 1, that the law was changed. In construing all conveyances prior to that statute, it has been held that a conveyance to a husband and wife conveyed an estate by entireties. Pray v. Stebbins, 141 Mass. 219. Donahue v. Hubbard, 154 Mass. 537. Morris v. McCarty, 158 Mass. 11. Phelps v. Simons, 159 Mass. 415.

The ruling of the court below that as the wife survived her husband she was the sole owner of the granted premises, and the finding for the tenant, were therefore right.

Exceptions overruled.