Varney v. Stevens , 22 Me. 331 ( 1843 )

The opinion of the Court was drawn up by

Shepley J.

— The last will of Jonathan Varney, deceased, contains this clause: “ My will' is, that my said wife Dorothy Varney shall have the whole of my estate, real and personal, during her natural life.” The general rule is, that a devise of lands without words of inheritance, gives only an estate for life. If the devise be accompanied by a personal charge upon the devisee, it is indicative of an intention to give a fee. And it has been decided, that a devise of uncultivated lands, without words of inheritance, gives a fee. In this case there was no personal charge imposed upon the devisee, and there was an express limitation of the devise by the words “ during her natural life.” And the introductory words, “ as touching my worldly estate,” “ I give; demise, and dispose of the same in the following manner and form,” cannot be considered as exhibiting an intention to give a fee in contradiction of the express limitation. Crutchfield v. Pearce, 1 Price, 353.

The tenant offered certain deeds, showing a sale of the premises by a collector of taxes, and a release of that title to himself. If it had been admitted, he would have taken under such a release according to his title; and the reversioners according to theirs. “ A release of a right, made to a particular tenant for life, or in taile, shall aid and benefit him or them in the remainder.” Co. Litt. § 453, and 267, b.

It was moreover the duty of the tenant for life to cause all taxes assessed upon the estate during his tenancy to be paid; and by neglecting it, and thereby subjecting the estate to a sale, he committed a wrong against the reversioners. And when he received a release of the title, if any were acquired under that sale, he would be considered as intending to discharge his duty by relieving the estate from that incumbrance. To neglect to pay the taxes for the purpose of causing a sale of the estate to enable him to destroy the rights of the reversioners, would have been to commit a fraud upon their rights. This is not to be presumed. On the contrary he must be presumed to have intended by procuring that release to extinguish the title under that sale.

Having a legal right to the possession of the estate during the life of his wife, he is to bo considered as occupying according to his legal rights, and not as a wrongdoer. “ His possession is to be construed according to his rights.” Liscomb v. Root, 8 Pick. 376. He cannot therefore establish any title as a disseisor against the reversioner; and for that purpose only could the deeds offered have been received as evidence. To have established a title under them superior to that of the reversion-er’s, it would have been necessary to make some proof of the preliminary proceedings so far at least, as they were to be derived from recorded and documentary evidence, even after such a lapse of lime. Blossom v. Cannon, 14 Mass. R. 177.

As the tenant is considered as having during the life of his wife, occupied the estate according to his legal title, his possession could not be adverse to the title of the reversioners; and he cannot bo entitled to claim “ by virtue of a possession and improvement” under the statute, while he was thus occupying under a subsisting and valid title.

Judgment on the default.