Lakeman v. Butler

34 Mass. 436

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1835
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. The defendant justifies the trespass alleged, under a license from John Baker and Tristram Brown, who claim a limited right of fishery in the locus in quo, derived through sundry conveyances from one Elizabeth Choate. And the only material question is, whether she took under the will of John Patch, the former owner of the locus, an estate of inheritance, or a mere personal privilege. For if she took the former, then it was assignable, and passed to Baker and Brown, whether the right was appurtenant to Castle Hill farm or not; but if it was a personal privilege, then clearly it was not assignable, and the defence fails.

By the will there is devised to Elizabeth Choate and to her heirs and assigns the Castle Hill farm (bounding it) “ and half a mile of the lower end of the beach, to be measured at high-water mark, for drift wood and timber of all sorts, and all the remainder of my beach, with a privilege of digging ten barrels of clams yearly at the southerly end of my farm.” By these words in .the will we can have no doubt that Elizabeth Choate took an estate of inheritance, or right in fee, in the whole of the property and the privileges devised.

The words “ heirs and assigns ” designate the extent of the estate devised, as well in respect to the privileges as to .he land. To whom were these privileges devised ? Not to Elizabeth Choate during her life, but to her and to her heirs and assigns. If a man devises Black acre in fee to A, “ and also White acre,” A. shall take a fee in White acre, as well as in Black acre. Com. Dig. Estates by Devise, JV*2. And so, in the present case, Elizabeth Choate took an estate of inheritance in the right of fishery and other privileges devised, as well as a fee in the land. This right was clearly assignable and passed to Baker and Brown, under whose license the defendant justifies. According to the agreement of the parties, therefore, the plaintiff is to become nonsuit.