Pettingell v. Boynton

Devens, J. In filing a partial disclaimer of land demanded, it is necessary for a tenant to describe that portion to which he disclaims title with the same particularity that is required of a demandant in his declaration, who must make his description of the land demanded so certain that seisin thereof may be delivered by the sheriff without reference to any description dehors the writ. A reference to deeds not set forth, which would be sufficient in a conveyance of land, will not constitute such a description. Atwood v. Atwood, 22 Pick. 283. Riley v. Smith, 9 Allen, 370. The presiding judge correctly ruled that the description of the land disclaimed was too vague and uncertain. [248] The demandants claimed under the will of Moses Pettingell, and under certain conveyances subsequent thereto, by which they had become entitled to the estate devised by his will. This will devised the income of the estate there described, which is the same as that demanded, and is known as Plum Island, to three persons there named, whom he styles his children, although one was the widow of a deceased son, requests his executors to have the care of the same, to collect the rents and income thereof, and equally divide the same between his children named, and adds, “if hereafter my said children herein named should think best to sell and dispose of said island, they may have the right to do so, — the proceeds to be equally divided.” Since the decease of Moses Pettingell one of the executors has had the sole care and control of the property, and has collected the income thereof, but the demandants have sold a parcel thereof. The tenant objected to the admission of the will, and contended that the clause in question gave the legal estate in the land devised to the executors as trustees, and therefore that the demandants could not maintain the action. The court correctly ruled otherwise. Although the clause in question commences by stating, “ Plum Island, and all my interest therein, I wish to be kept for the benefit of my children,” and this is afterwards followed by a request to his executors to collect the rents and income, and pay the same to his children named, yet the next clause, authorizing his children to dispose of the island at then-own discretion, dividing the proceeds equally, gives to them the estate in fee, as they alone can give a title to the premises. While, as a general rule, a trustee takes such an estate as is necessary for the purposes of his trust, he takes no more than is sufficient to answer those purposes. Fay v. Taft, 12 Cush. 448. Brewer v. Stevens, 13 Allen, 346. If the request in the will is construed as creating a trust in the executors to take care of the estate, and collect the income, it is only for so long a period as the cestuis que trust shall refrain from selling it. The executors have therefore no estate in fee. That belongs to those persons who might at any time sell the estate, and terminate the trust. The acts of possession done by the demandants’ ancestor, Moses Pettingell, and by the executors of his will, who, in [249] obedience to its request, had taken care of the property and exercised certain acts of ownership thereon, and similar acts done by the demandants themselves, were properly admitted, as well as the deed from the proprietors of common lands to Moses Pettingell, in 1827, of the premises demanded. The deed was more than thirty years old. It came from the proper custody, the children of the grantee, and, following the instructions of the court, it must have been found that under this Moses Pettingell had asserted title. Even if the deed failed to convey title, an adverse possession maintained under it sufficiently long would give title as against every one. The instruction to the jury, that if Moses Pettingell entered under said deed, and continued in possession, claiming title thereunder for more than twenty years consecutively, then, as the tenant had shown no title whatever, their verdict should be for the demandants, was indeed more favorable to the tenant than he had a right to ask, as it required of the demandants to show an entry, and a possession of more than twenty years. Whether the acts done by Moses Pettingell and those claiming under him were such as would oust the true owner, or whether, if of such a character, they had been continued for more than twenty years consecutively or not, they were certainly sufficient to create a possessory title which was good against a mere intruder, without pretence of title. The ruling requested, that the demandants must show a perfect title, was entirely erroneous. There may be a possessory title, the holder of which may be treated by the true owner as a tortfeasor, which will avail such holder in maintaining an action of trespass or a writ of entry against a stranger for a disturbance of his own possession. Possession under a claim of right constitutes legal seisin, which will avail against every one not having an older and better title. Even if it had been shown that the possession of the demandants was not that of the true owner, as there may be a possession perfectly legal and valid against one, and yet wholly insufficient as against another, it was proper to instruct the jury upon this point that, if the demandants had shown a good title as against the tenant, they were entitled to recover. Provident Institution for Savings v. Burnham, 128 Mass. 458. Perry v. Weeks, 137 Mass. 584, and cases cited. Exceptions overruled.