Sylvester v. Sylvester , 83 Me. 46 ( 1890 )

Walton, J.

This action is not maintainable. One entitled to an estate in remainder only, subject to an existing life estate in another, can not maintain a writ of entry against one rightfully in possession under the life estate. To sustain such an action the plaintiff must not only prove that he has such an estate in the demanded premises as he claims, but he must also prove that at the time of suing out his writ, he had a right of entry into the demanded premises. E. S., c. 104, § 5. This he can not have while another is rightfully in possession under an unexpired life estate.

The evidence in this case shows that Martha A. Sylvester, (who is still living) by virtue of her husband’s will, had a life estate in the demanded premises. And it is claimed that the will also gave her power to sell the remainder in case of extreme need. But the view we take of the case renders this latter proposition immaterial; for whether she had a power to sell the remainder or not, she was undoubtedly possessed of a life estate which she could sell at her own will and pleasure. And the evidence shows that in 18(18, she executed a quit-claim deed of all her right, title, and interest in the demanded premises to her son, Joseph IT. Sylvester, and that he subsequently conveyed the same to his wife, who is the defendant in this suit.

The evidence tends to show that the conveyance by Martha, was made to protect the property from attachment; but this is immaterial; for the plaintiff is not an attaching creditor, nor does he claim through an attaching creditor. As against this plaintiff, the effect of the conveyance by Martha to her son Joseph, and by the latter to his wife (the defendant,) was to vest in the latter the life interest of Martha, and entitle her to the possession of the demanded premises so long as Martha should live. And if it be true, as the plaintiff claims, that he is entitled to the remainder, his right of entry will not accrue till the life estate expires ; and till then, a writ of entry by him can not be maintained to obtain possession of the premises. This view of the case renders it unnecessary to determine who will have the better title and be entitled to the possession of the demanded premises when the life estate expires ; and upon that question we express no opinion.

Plaintiff nonsuit.

Peters, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.