Lobdell v. Hayes

78 Mass. 236

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1858
• Status: Published

Opinion

Thomas, J.

Upon the decease of the owner of real estate, it descends to and vests in his heirs at law, unless otherwise disposed of by his will. It vests in his heirs, however, subject to the payment of his debts. But until a sale is lawfully made for that purpose the heirs may enter upon the estate and receive the rents and profits. Their interest is determined only by the sale. Gibson v. Farley, 16 Mass. 287. Boynton v. Peterborough & Shirley Railroad, 4 Cush. 467.

This is true also of the estate in which the deceased had an equitable interest, which he had purchased of the city of Boston, upon which he had erected dwelling-houses, and of which he was in possession at the time of his death. Rev. Sts. c. 61, § 1; c. 74, §§ 8-14. Reed v. Whitney, 7 Gray, 533.

The real estate of Lobdell was disposed of by his last will and testament. In the portion devised in trust for his daughters, the heirs at law, as such, have of course no interest. But, in relation to so much as was devised to the widow, she, as she had a legal right to do, waived the provisions of the will. Of this estate there is no devise over. The devise fails, and the estate descends as intestate estate to the heirs at law.

The plaintiff is one of three heirs at law who take the estate devised to the widow, and the devise of which fails by her waiver of the provision of the will. The plaintiff would therefore be entitled to the possession of one third of such estate, or of the rents and profits of one third until the same is sold for the payment of debts; that is to say, she is entitled under the facts agreed to one third of one half of the rents received by the administrators, subject to the deductions hereafter stated.

By the agreed statement of facts it appears that the administrators in the collection of the rents and in the management and care of the estates acted as the agents of all the parties in interest. And from the amount to be accounted for as rents are first to be deducted the sums expended for repairs upon the real estate, for interest upon the mortgages, for taxes and insurance, and a reasonable compensation to the administrators for their services in the care of the estates and collection of the rents.

As to the rents received from the houses in Medford Court they must be held to abide the decision in the suit of Montague v. Lobdell.

The demand of the widow upon the administrators for dower was of no avail, so far at any rate as it applied to the estates which, by her waiver of the provisions of the will, descended to the heirs at law, and no deduction is to be made from the plaintiff’s share on that account.

If the parties are unable to agree upon the amount to be paid to the plaintiff, under the rules above stated, the case must be sent to an assessor to fix the amount.

Judgment for the plaintiff.