Baker v. Mattocks

1 Super. Ct. Jud. 69

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1763
• Status: Published

Opinion

. Ch. Justice.

It seems evident to me that it is the Spirit of the English Law, that all Inheritances should follow the Method of Fee Simple: If it was now a thing intirely upon the Law I should not have the least Difficulty of thinking Fee Tail, as well as Fee Simple, was partable; but it has been so long thought otherwise here, and this has been the uninterrupted contemporaneous Exposition of the Law, and many Judgments of Court founded on it, that it creates a great Difficulty, and I am glad that the Point is determined without me, for how such a Custom can prevail against plain Law, I doubt. (⁴)

4 (4) Judge Trowbridge, in an opinion given upon the will of Shute Shrimpton Yeomans, who died in 1769, (for an opportunity of examining which we are indebted to Edmund Trowbridge Dana, Esq.,) took the same view of the law as the Chief Justice and Justice Cushing in this case. But the law in this State has since been settled in accordance with the decision of the majority of the Court. Corbin v. Healy, 20 Pick. 516. Wight v. Thayer, 1 Gray, 284, 286. It was not until after the Revolution that the provisions for barring entails by common deed of warranty were enacted. St. 1791, c. 60. And even at the present day this cannot be done by will. Gen. Sts. c. 92, § t. 6 Gray, 24.