
    Alphonso Brooks & wife vs. John Whitney.
    A testator, after devising the use of his homestead farm to his wife, during her widowhood, made this devise: “ To my son J. I give and bequeath one half of my homestead farm aforesaid, subject to the incumbrance of the aforesaid devise to my wife, to him and his heirs forever. I also give to my said son J. the use and improvement of one half of the C. lot, to be held by him until the death or intermarriage of my wife, together with the one half of all my lands in N.” Held, that J. took only an estate during the life or widowhood of his mother, in the lands in N.
    W. took a bond for a deed of land, paid the purchase money, entered into possession, retained possession during his life, and devised the land to his heirs at law: After his death, his executor, who was one of his heirs, took from the obligors in the bond a deed of the land to himself, and held possession of the land for many years. Held, that W. had such an interest in the land as enabled him to dispose thereof by devise. Held also, that W.’s executor could not set up said deed and possession against the other heirs, in bar of their petition against him fi'r partition of the land.
    Petition for partition of a tract of land in that part of Princeton which, until recently, was unincorporated, and was called Notown. The petitioners claimed yWV Pai'ts of the tract, under a devise of Andrew Whitney to his daughter, the female petitioner.
    The trial was before Hubbard, J. whose report thereof was as follows: The will of said Andrew Whitney, who died in 1818, was made on the 27th of October 1817, and was duly proved and allowed in December 1818. By the first clause of this will, the testator gave to his wife, Lucy Whitney, the use and improvement of the whole of his homestead farm in Princeton, together with a pew and certain specified personal property, during her widowhood; with a provision, that if she should marry, she should only take dower in his real estate, and deliver over to his heirs at law such of said personal property as should then be on hand.
    The other parts of the will (so far as they affected the petitioners’ right to partition) were as follows: “ 2d. To my son John Whitney I give and bequeath one half of my homestead farm aforesaid, subject to the incumbrance of the aforesaid devise to my wife, to him and to his heirs forever. Provided, however, that it shall be at his option, at any time within one year of my decease, to waive the bequest I hereby make to him, and take an equal share of my estate with my other sons, in lieu of this devise. I also give to my said John the use and improvement of one half of the Chandler lot in Notown, to be held by him until the death or intermarriage of my wife, together with the one half of all my lands in Notown. 3d. To my sons Reuben M., William E., Dana and Charles A., I give and bequeath to each of them, and their heirs, five hundred dollars severally. 4th. To my daughters Lucy, Anne M., Sally and Caroline, J give and bequeath to each of them, and their heirs, three hundred dollars severally. 5th. All the rest and residue of my estate, whether real or personal, I give and bequeath to all my children aforenamed, to be distributed among them in the proportions of the above legacies; excepting, however, to my son John Whitney, who is to take the legacies given to him in the second article of this will as his full share, unless he waives the provision, as therein stated.”
    
      John Whitney (the respondent) was appointed executor of said will, and accepted the trust. On the 21st of October 1819, he filed in the probate office a waiver of the bequest in the first clause of the will, and claimed “an equal share of said testator’s estate, with the other sons, agreeably to the provisions of said will.” Lucy Whitney, the testator’s wife, died in 1843.
    The land described in the petition formerly belonged to Samuel and Charles Chandler in severalty. Previously to the year 1814, the part which Samuel Chandler owned was purchased by Silas Brooks, who conveyed the same, on the 20th of April 1814, to the said Andrew Whitney and John Darby. In the same year, said Andrew acquired, by purchase, the moiety of Darby. And there was evidence that said Andrew, after he purchased, called the land the Chandler lot. Said Andrew never had a conveyance of the tract which belonged to Charles Chandler. But it was proved that after said Charles’s decease, to wit, in 1816 or 1817, said Andrew contracted for the purchase of his (said Charles’s) land in Notown, with Samuel Ward, who was then the husband of Sarah, the only child and heir at law of said Charles. The said Sarah then being a minor, her husband gave a bond, with surety, to said Andrew Whitney, conditioned for the conveyance of said land to him, when said Sarah should come of age, to wit, in December 1818. On the 11th of October 1827, the respondent took from said Ward and wife a conveyance to himself of said last mentioned tract of land, “to have and to hold to the said John Whitney,'his heirs and assigns, to his and their use and behoof forever.” In this deed, the grantors acknowledged the receipt of “ one thousand dollars paid by John Whitney, executor of the last will and testament of Andrew Whitney, late of Princeton, deceased ; ” but their covenants were with “ the said Whitney, his heirs and assigns.”
    The respondent contended, first, that he was entitled to hold one half of the Chandler lot, so called, and the whole .if the residue of the testator’s land in Notown, by virtue ol said will and deed ; secondly, that the legal title to the said last mentioned tract was in him, by force of the deed from Ward and wife ; and thirdly, that he had acquired title to said tract, by adverse possession, from the year 1817, taken under a parol gift of. said land to him by said Andrew.
    There was evidence tending to show, by the declarations of said Andrew Whitney, that he had given the Ward lot (as it was sometimes called) to the respondent, and that the respondent improved it as his own. It was admitted, however, that the question of the respondent’s seizin in the life time of his father depended upon the question whether there was such a parol gift or not.
    The respondent contended, fourthly, that this petition could not be maintained, in respect to the tract of land acquired from Ward and wife, inasmuch as he had been in possession under his deed, claiming title, from the time of the conveyance.
    The evidence was uncontradicted, that the respondent had in fact been in possession of that tract, from the time of the decease of the testator to the time of the trial.
    The respondent admitted the right of the petitioners to have one half of the land, that was purchased of Silas Brooks, set off to them, on their petition.
    The jury were instructed to find specially, first, whether or not the consideration of the land acquired from Ward and wife was paid by Andrew Whitney, in his life time: and secondly, whether or not there was a gift of said last mentioned land, by the said Andrew, by parol, in his life time, and whether or not possession was taken under it. The jury were also instructed, that if they should find that the consideration for said land was paid by the said Andrew Whitney, and that there was no such parol gift from the testator; nor possession taken under, it, in his life time, they should render their verdict for the petitioners.
    The jury found that the said consideration was paid by the testator, and that there were no such parol gift and possession taken, claiming under such gift; and they rendered a general verdict for the petitioners.
    
      If the said instructions were correct, judgment to he entered for the petitioners for partition, as prayed for; otherwise, for partition of such portion of the land described in their petition, as they are entitled to have partition in.
    
      C. Allen & F. H. Dewey, for the respondent.
    John Whitney, the respondent, was entitled, by the will of his father, to an estate for the life of his mother, in one half of the Chandler lot, and to an estate for his own life, in one half of the Notown lands. The words annexed to the Chandler lot do not qualify the devise of the other land.
    The whole legal estate in the Ward lot Was in the respondent, by force of the deed from Ward and wife, made in 1827. That deed could not convey a legal estate to Andrew Whitney’s heirs. Nor could payment by the funds of the heirs, or of their ancestor, raise a resulting trust. Such trust must appear in writing. Northampton Bank v. Whiting, 12 Mass. 104. Goodwin v. Hubbard, 15 Mass. 210. Kempton v. Cook, 4 Pick. 305. Howe v. Bishop, 3 Met. 26.
    The respondent has long been in possession, claiming title , and if he had not a parol gift, yet he may be considered as holding adversely under his deed. If so, this petition cannot be maintained. Bonner v. Proprietors of Kennebeck Purchase, 7 Mass. 475. Rickard v. Rickard, 13 Pick. 251. Bigelow v. Jones, 10 Pick. 161. Proprietors of Kennebeck Purchase v. Laboree, 2 Greenl. 285, 286. Andrew Whitney was, at most, tenant at will under Ward, and that tenancy was determined by his death. He was not a disseizor, and therefore the estate in the land did not pass to his heirs.
    The respondent, by waiving the devise of the homestead farm, did not waive the devise of the Notown lands.
    
      B. F. Thomas & Hartshorn, for the petitioners.
    The respondent took an estate, for the life of the widow, in the Notown lands, as well as in the Chandler lot. Right v. Sidebotham, 2 Doug. 759. Cole v. Rawlinson, 1 Salk. 234. Cruise’s Dig. tit. 38, c. 13, § 13. He was not to have the homestead till his mother’s death or marriage, and in the mean time he was to have the Notown lands.
    
      As Andrew Whitney paid the consideration for the Ward lot, the deed taken thereof by the respondent did not vest the estate in himself, so that he can take any advantage against the heirs. He is estopped to set up this deed, as it is inoperative as against the petitioners. 1 Story on Eq. §§ 315, 316, 322, 323. Davoue v. Fanning, 2 Johns. Ch. 252. Van Horne v. Fonda, 5 Johns. Ch. 388. Van Epps v. Van Epps, 9 Paige, 237. Such is the rule in equity, and it is recognized and enforced at law. Fermor’s case, 3 Co. 77. Litchfield v. Cudworth, 15 Pick. 23. Harrington v. Brown, 5 Pick. 519.
    The respondent’s possession, during the life of his father, was the possession of the father, which he took under the bond of Ward; and his possession after his father’s decease was the possession of all his co-heirs. See Flagg v. Mann, 2 Sumner, 520. Van Horne v. Fonda, 5 Johns. Ch. 407. Brown v. King, 5 Met. 173. 4 Kent Com. (5th ed.) 371.
   Dewey, J.

1. The court are of opinion that the interest of John Whitney, under the devise in the will of Andrew Whitney, of “ one half of all my lands in Notown ” was that of an estate determinable on the marriage or decease of the widow of the testator. It is clearly shown to be so by its immediate connexion with the devise of one half of the Chandler lot, which is in terms thus limited. It is not given to the devisee, his heirs and assigns, although these words are used in other parts of the will. As this devise falls within the same limitation as that of the one half of the Chandler lot, the respondent cannot maintain a valid defence under it; the life estate having terminated by the death of the testator’s widow.

2 The respondent then insists that the petitioners have no legal estate in the lands in Notown, other than the Chandler lot, and that they derived no title under Andrew Whitney, he having, it is alleged, no title therein which he could transmit by devise to the petitioners. The position taken is, that Andrew Whitney never had any title to that portion of the estate in controversy, which formerly belonged to Charles Chandler, but that the same passed by deed from Samuel Ward and wife to the respondent. It is true that such is the apparent paper title; and if the effect be given to this deed, which the form of the instrument would indicate, the respondent would have the better title. The inquiry then arises, whether that deed can be set up as against the petitioners, who claim title through Andrew Whitney. The case finds that Andrew Whitney, as early as 1816 or 1817, contracted for the land; but, Mrs. Ward being then a minor, no legal conveyance could be made, and a bond was taken by Andrew Whitney from Samuel Ward, that a proper conveyance should be made when Mrs. Ward should come of age.

The question of adverse possession was virtually settled by the verdict of the jury. The petitioners are not estopped from asserting their claim by reason of any adverse possession. Nor do we perceive any difficulty in sustaining the position, that although no paper title existed, transferring the estate from Samuel Ward and wife to Andrew Whitney, yet that there was an interest in the land, in Andrew Whitney, sufficient to enable him to pass an estate by devise, as against a mere stranger. He had a possessory title amply sufficient for this. He was in possession, under a claim of right. The only real difficulty, if there be one, is that which arises from the alleged superior title of John Whitney, under the deed of Ward and wife, made in 1827. If this deed is valid, and is to be construed to enure to the benefit of John Whitney and his heirs, the respondent may justify, as holding the better title. The objections to giving such effect to this deed arise from the facts, that the contract for the conveyance was made with Andrew Whitney; that the payment of the purchase money was by him; that a bond was given to him to convey to him the land; that John Whitney was the executor of Andrew Whitney’s will, and as such came into the possession of this bond, and, while holding this relation to the estate and to all concerned in the proper execution of a deed in pursuance of the bond, took a deed directly to himself and his heirs, describing himself, however, as the executor of Andrew Whitney.

We are not prepared to say that the description of the grantee, in the deed from Ward and wife, as executor of Andrew Whitney, would of itself vest any estate in the devisees under the will of Andrew Whitney. The title of the petitioners is to be sustained by the objection taken to the deed made to John Whitney. He held the fiduciary relation of executor. He was the legal representative of Andrew Whitney, and was, as such, bound to protect the interest of the estate intrusted to his care. As such executor, he held the bond from Ward for the conveyance of the estate to Andrew Whitney; and, acting in that capacity, he was bound to take such a conveyance as would enure to the benefit of the devisees of the same under the will of Andrew Whitney, and not to take a deed operating to defeat their title.

The law looks with jealousy upon all contracts made by an executor or administrator concerning the estate committed to his charge. He cannot properly be the purchaser, even indirectly, of an estate which he is directed to sell; as such purchase by him would be inconsistent with the proper discharge of his duties as seller. The same principle, though differently applied, should have prevented him from taking a conveyance to himself personally of the estate in question. He ought to have required a conveyance to be made in apt and proper words to vest the estate in those holding under the will of Andrew Whitney. The law will not allow him thus to defeat the operation of the devise in their favor. Such would be the rule in equity. And in this Commonwealth, the like rule prevails at law ; and instead of the remedy by bih in equity, requiring the executor to make the proper conveyance to vest the estate in those to whom it properly belongs, the court effect the same object in a proceeding at la v, by declaring such deed avoidable, and allowing it to be avoided in a suit at law, when offered in evidence as vesting in the executor a legal title to the estate. We think that in the present case, upon the facts found, it would be fraudulent in law, in John Whitney, to take this deed otherwise than for the benefit of the estate of his testator and those holding under a devise from him. John Whitney cannot therefore set up this deed to himself against the claim of the devisees to this land, and with the view of defeating a title which could otherwise have vested in them.

The petitioners are to have partition, as prayed for.  