Moseley v. Bolster

Sheldon, J. 1. The defendants’ demurrer was rightly overruled. It is true that a partition of the real estate left by Augustus B. Perry cannot be made in this proceeding in equity. Husband v. Aldrich, 135 Mass. 317. But the bill can be maintained to determine the rights of the parties and to state the account between them and to obtain for the plaintiffs that part of the personal property to which they are now entitled. Holmes v. Holmes, 194 Mass. 552, 556. And because there has been in reality an open running account between these parties, and it has been understood between them that the divisions made were only pro tanto and that a final division or distribution was to be made in the future, the plaintiffs’ remedy is not barred by loches on their part or by the statute of limitations. R. L. c. 202, § 6. The evidence on which the master’s finding of this fact was based is not reported; the terms of the agreement made between the parties on October 16, 1900, by which they agreed to correct any inequality in a partial division of the real estate upon a future division being made in the lifetime of one of them, are not [143] inconsistent with the understanding which the master has found, but rather are favorable to his finding ; and we cannot say that he has reported all the facts upon which he based the finding, so as to enable us to determine whether it was warranted, as in Fleming v. Cohen, 186 Mass. 323, 325. 2. The principal question to be considered arises upon the residuary clause in the will of Augustus B. Perry. That clause is as follows: “All the rest and residue of my estate in whatsoever it may consist and wheresoever situated, I give bequeath and devise to my son Oliver H Perry and my daughters Martha Ann Perry and Mary Augusta Moseley wife of John G Moseley of said Boston as follows to my son Oliver H one undivided half part and I desire that my real estate in Needham County of Norfolk & Commonwealth of Massachusetts shall beheld by my son Oliver in the division of my estate, together with the farm stock utensils and other personal property on said estate in Need-ham, to my said daughter Martha Ann one undivided quarter part and to my daughter Mary Augusta one undivided quarter part.” The apparent uncertainty in this clause seems to the majority of the court to arise from the attempt of the testator to combine in it two different dispositions of that part of his estate which he had not disposed of by the previous clauses of his will. He intended that it should be taken by his children as tenants in common, in the proportions of one undivided half part to his son and one undivided fourth part to each of his two daughters. But he also intended that his son should take specifically his real estate in Needham, with the farm stock and other personal property thereon, but that this property should constitute a part of the son’s undivided one half share in all of the residue of the testator’s estate. It was not simply a provision that if and when a division of the whole residue should be made the son should take this property as a part of his share ; the testator did not know and no one could foretell whether such a division would be made. It was rather a specific devise carved out of the residue, to be taken and held by the son in any event. The expression of the testator’s “ desire ” that this property should be held by his son was not the mere expression of a hope that the beneficiaries of his will would use his bounty in a certain manner; it was an opera [144] tive disposition of his property. Cary v. Cary, 2 Sch, & Lef. 172, 189. Wood v. Camden Safe Deposit & Trust Co, 17 Stew. 460. Taylor v. Martin, 8 Atl. Rep. 920. Oyster v. Knell, 187 Penn. St. 448. This special provision for the son is not to be treated as merely a direction for the occupancy until a division should be made, or as to the manner of making a division, as sometimes has been found to have been intended by testator. Walker v. Dewing, 8 Pick. 520. Dallagher v. Dallagher, 171 Mass. 503. Griswold v. Johnson, 5 Conn. 363. The interests of all the children under this clause must be treated as vesting at the same time, at the death of the testator. Brown v. Bailey, 1 Met. 254. Full effect can be given to the intent of the testator by treating this disposition of a part of the residue in favor of the son as a partial division made by the testator of the undivided estate ■ which he gave to all his children. Brasher v. Marsh, 15 Ohio St. 103. But the general intent of the testator that his son should take only one half part of the residue including the Needham property and that each of his daughters should have a full one fourth part thereof is not to be frustrated. It is true, as we have already said, that the interests of each of the children became vested at the death of the testator, that they took as tenants in common in everything except the Needham property, and that the interests which they respectively took at that time as tenants in common (although subject as to a part of the property to the provision for the benefit of their mother) could not among themselves be uncertain or subject to variation except by their own acts. Marlborough v. Godolphin, 2 Ves. Sen. 61, 74. The general intent of the testator that all the residue should be held by them in the proportions already stated is perfectly evident, and is not to be defeated by the effect of other dispositions in the will, if effect can be given to them altogether. Shattuckv. Balcom, 170 Mass. 245, 251. Barrett v. Marsh, 126 Mass. 213, 216. Williams v. Bradley, 3 Allen, 270. Such effect can be given consistently with all the rules of law by treating this clause of the will as giving to the son the Needham property and to the three children as tenants in common the rest of the property in such proportions that, taking into account the value of the Needham property, the son’s share shall be one half and the share of each [145] of the daughters shall be one fourth of the whole. We see no other way of giving effect to all the provisions of the will; and accordingly we are of opinion that this must be the construction adopted. 3. The effect of this construction, upon the facts found by the master, is that the son became entitled upon the death of his father to .4587, or four thousand, five hundred and eighty-seven ten thousandths, of the residuary estate of his father outside the Needham property, and each of the daughters became entitled to .27065, or twenty-seven thousand and sixty-five one hundred thousandths thereof. The son having entered upon the Need-ham property and enjoyed whatever its rents and profits were, the income from the other property real and personal of the estate belonged to the children in the same proportions as the principal, and the sum in the hands of the receiver should now be applied so as to correct the error committed in the partial divisions of the income which have been made. Rogers v. Ross, 4 Johns. Ch. 388. Minot v. Purrington, 190 Mass. 336, 342. These divisions upon the findings of the master are open to correction, and such correction should be made. The cases which hold that tenants in common are not liable to account to each other for rents or profits by reason merely of their occupation of the whole or of parts of the undivided estate have no application to this case, and need not be considered. It is not necessary to discuss in detail all of the defendants’ exceptions to the master’s report, although they have all been considered and examined. We do not find that any of them should be sustained. It is not disputed that the rights of the parties to the real estate in Lynn, which was taken in part payment of a debt, are in equity the same as if it were personal property. The parties have filed a stipulation as to the rents of the real estate for the year 1907, and for the correction of some clerical errors in the master’s report. But upon the terms of the report the decree contended for by the plaintiffs, of which a copy was annexed to the report, should be entered, subject to any modification of its figures by reason of further receipts of rents or expenses incurred in the receivership; and, although the stipulation is not perhaps perfectly clear in this respect, we do not under [146] stand that it requires any variation in the decree. Accordingly that decree will be entered, subject to modification as already stated. So ordered.