Smith v. Shaw

22 N.E. 924, 150 Mass. 297, 1889 Mass. LEXIS 83

• Court: Massachusetts Supreme Judicial Court
• Decided: November 30, 1889
• Status: Published

Opinion

Field, J.

The demandant is the sole heir of David Gloyd, who died in 1886, seised of the demanded premises, leaving one child, the demandant, who was then nine years of age, and a widow, the mother of the demandant. The widow was entitled to dower in the land, but her dower was never assigned to her, and she conveyed the land in 1849 by warranty deed to one Floyd, from whom by mesne conveyances it has come to the tenant. The widow died in 1879; the tenant and those under whom she claims have been in adverse possession of the land since 1849. The demandant asked the court to rule “ that the statute of limitations did not run against the demandant until the death of the mother.” The court refused to give this ruling, and ruled “ that, as there was no evidence that the dower had ever been set off to the mother, the statute of limitations ran against the demandant before the death of the mother”; and the demandant excepted.

A widow, before her dower has been assigned to her, has no estate in the lands of her deceased husband. Windham v. Portland, 4 Mass. 384, 388. Sheafe v. O'Neil, 9 Mass. 13. Gooch v. Atkins, 14 Mass. 378. Hildreth v. Thompson, 16 Mass. 191. Croade v. Ingraham, 13 Pick. 33. McMahon v. Gray, ante, 289.

There was, therefore, after the death of David Gloyd and before the demandant as his heir was entitled to possession, never any intervening estate within the meaning of the Pub. Sts. e. 196, § 3, els. 2, 3.

* Exceptions overruled.

Section 3, els. 2, 3, of this chapter, which is entitled “ Of the limitations of real actions and rights of entry,” is as follows:

“ Second, When he [any person] claims as heir or devisee of one who died seised, his right shall be deemed to have accrued at the time of such death, unless there has been a tenancy by the curtesy or other estate intervening after the death of such ancestor or devisor, in which ease his right shall be deemed to have accrued when such intermediate estate expired, or when it would have expired by its own limitation.

“ Third, When there has been such an intermediate estate, and in all other cases when the party claims by force of a remainder or reversion, his right, so far as it is affected by the limitation herein prescribed, shall be deemed to have accrued when the intermediate or precedent estate would have expired by its own limitation, notwithstanding any forfeiture thereof for which he might have entered at an earlier time.”