Whitman v. Whitman

48 Mass. 268

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1843
• Status: Published

Opinion

Wilde, J.

Upon the facts agreed, we think it very clear that the petitioner has a good legal title to the undivided quarter part of the premises, as claimed in his petition. This share was devised by Mercy Whitman, the former owner of the premises, to Stephen Bailey and Josiah Whitman, in trust for the benefit of the petitioner; but she afterwards conveyed the premises to Samuel Whitman, and he afterwards conveyed the share now claimed to the petitioner. The words of the conveyance are, “ all the right, title and interest which I have in and to all the real estate devised to said Stephen and Josiah, in trust for said Jonas, in the last will and testament of said Mercy.”

These are words of description of the estate intended to be conveyed ; and unquestionably they passed the legal estate to the petitioner.

It was argued for the respondents, that by the words “ estate devised ” nothing was intended to be conveyed but such property as would pass by the will. But it is impossible to support this construction; for after the conveyance of the whole real estate by Mercy Whitman, nothing but personal property could pass by her will. And the intention of the parties to the conveyance, to convey the real estate intended to pass by the will, is very manifest.

Judg writ for partition.