Whitby v. Duffy

Opinion, Me. Chief Justice Paxson: The learned judge below held that the deed from Henry Whitby to Albert E. Carpenter, and the deed of Carpenter to Kate Whitby, wife of the said Henry Whitby, constituted one transaction, the object and effect of which were to transfer the title of the real estate in question from Mr. Whitby to his wife. In this there was no error. Both deeds were for the consideration of one dollar; they were executed on the same day, and witnessed by the same persons. It is evident that Carpenter was the mere conduit through which the title was to pass. In contemplation of law, the fee never vested for a single moment in him; it passed through him, without stopping. It is almost absurd to suppose that he was to take any interest, however slight, in the property. It was strongly urged, however, that the learned judge below traveled out of the case stated, in order to reach this conclusion. We do not think so. It was the proper, legal construction of the papers, and their construction was for,the court. That, in part, at least, is what courts are for. [628] Regarding this, then, as a settlement by Whitby upon his wife, it is almost grotesque to suppose that he intended that after his death his widow should give this estate to a stranger to his blood. This is just what she did. Mr. Whitby married a wife much younger than himself. Shortly after this settlement he died, leaving his widow and one child, the present plaintiff surviving. The widow married again, and, almost before the honey-moon had elapsed, she made her will in which she bequeathed and devised all her estate, real, personal, and mixed, whatsoever and wheresoever, “unto my beloved husband, John J. Duffy, his heirs and assigns, forever,” thus cutting off her only child, the child of her first husband from whom she acquired the estate, without a dollar. In the light of these circumstances, we will consider the terms of the deed from Carpenter to Mrs. Whitby. The habendum is as follows: “ To have and to hold the said tract or piece of land hereby granted unto the said Kate Whitby, her heirs and assigns, to and for the only proper use and behoof of the said Kate Whit-by, her heirs and assigns, for and during her continuing the widow of the said Henry Whitby, in case she survive him, and at her decease, to him,-the said Henry Whitby, his heirs and assigns forever, in fee.” This is clumsily worded, but the intent is clear to give the widow an estate during widowhood, and, after her marriage or death, to his son, Henry Whitby, in fee. The intent is not as clearly expressed as it might be, the fault, possibly, of the conveyancer ; but, regarding this for what it really is, a settlement by a man upon his wife, probably a substitute for a will, and looking at the situation of the grantor, an old man providing for a young wife and leaving one child, an infant, at the time, “ we see a man,” to adopt the language of the learned judge below, “ with a wife and one son, an infant, having no other property or estate, as we can see, than that described in this transaction. He knows that in case of his death'his widow can only receive under the law one third of the rents, issues, and profits of that ;• or the interest of the one third of the valuation money thereof, if sold, which he believes would not be sufficient for her comfortable maintenance and support durante viduitate; and, being desirous of providing amply for her welfare and comfort during widowhood, and securing the [629] premises to his son and heir after her marriage again or her death, he concludes to give her the full control, with the whole income, issues, rents, and profits of said real estate, during her widowhood, reserving to himself, his heirs and assigns, the fee.” It would be a violent presumption, too violent to be entertained for a moment, to suppose that he intended this estate to go to a second husband of his wife, after her death, to the exclusion of his own child. Yet, if the language of the deed requires this construction, the estate must go there, however shocking it may be to our sense of natural justice. Fortunately, we are not driven to this conclusion. There is abundance in the case to justify the ruling of the learned judge below. Judgment affirmed.