Swan v. Warren

Devens, J. If the assignment here in question be construed-in the light of the circumstances existing at the time it was made, and so that it shall, if possible, be operative, — doubtful or repugnant expressions receiving such construction as is least favorable to the grantor, — it sufficiently appears that the sum of money here in dispute was assigned to the claimants. The language of the conveyance is that of the assignor, as she has selected the terms; they are to be construed so as to give efficiency to her grant. Worthington v. Hylyer, 4 Mass. 196, 203. Eliot v. Thatcher, 2 Met. 44, n. Johnson v. Jordan, 2 Met. 234. The more general words of assignment of all right, title, and interest in the estate of Lilley conclude by adding the words, “intending hereby to convey all right and title of and to property personal, real, or mixed, which I have or may have as heir of said Chipman Lilley.” These expressions indicate strongly that she intended to convey all the property which she then had in possession derived from that estate, and also all which she was entitled to receive therefrom. The word “ heir,” as frequently happens, is not used in any exact or technical way. Minot v. Harris, 132 Mass. 528. The assignor then adds, “including also any right, title, or interest I may have or have now to any sum of money in the hands of Calvin Bryant, of Ashfield, aforesaid, derived from the sale by myself and mother of the farm occupied by father in his lifetime.” There was a sum of money amounting to $350 to which she was entitled, derived from the sale by herself and her mother of the farm described, which had been deposited by Bryant (who had conducted the sale) to her credit in the Shelburne Falls Savings Bank. Omitting the words “in the hands of Calvin Bryant,” those used in the assignment accurately describe this sum. They cannot apply to the promissory note taken by Bryant as payment in part for the farm, nor to the proceeds of personal property which he held. “ If a man,” says Chief Justice Parsons, “convey his house in D., which was formerly R. C.’s, when it was not R. C.’s, but T. C.’s, the house [14] in D. shall pass, if the grantor had but one house in D., because, by the description of his house in D., the estate intended to be conveyed is sufficiently ascertained.” Worthington v. Hylyer, ubi supra. The sum we are discussing in the case at bar was "not legally in the possession of Bryant, but it is definitely ascertained ; and, when we consider the relation which he had to it, the expression “ in the hands of Calvin Bryant ” might, in ordinary language, well have been used in reference to it. It had never been in the actual possession of the assignor, nor could she obtain possession of it. Bryant held the savings-bank book,' had refused to surrender it, or to deliver to her the money, or any part thereof, although he consented to make some small purchases for her. Even if Bryant claimed no legal right over it, he would not give it up, and had entirely controlled it for more than a year. When the money of one is spoken of as “ in the hands of ” another, often no more is meant than that the latter is a debtor to the former. The phrase is colloquial and familiar, and not an accurate one. In the assignment in the case at bar, it meant the sum of money which Bryant, by his possession of the bankbook, then controlled, so far at least as to keep it from the assignor. Exceptions sustained.