¶1It is conceded by the counsel of the tenant that the devise of John Hoffman to his daughter, “ Maria Eliza Hoffman, and her heirs born of her body forever,” created an *78estate tail, and that on her death the estate descended to her oldest son, Gilman Collamore, of whom the demandant, is the oldest son. Corbin v. Healy, 20 Pick. 514. Maria Eliza died on November 15, 1845. It is contended, among other things, by the counsel of the tenant, that Gilman Collamore barred the entail by his deed of December 12,1846, to John A. Andrew, trustee. Gilman died on July 26, 1884. On the facts stated in the exceptions, it must be taken that Gilman, at the date of his deed, was actually seised of the land as tenant in tail, within the meaning of Rev. Sts. c. 59, § 3, now Pub. Sts. c. 120, § 15. Green v. Chelsea, 24 Pick. 71, 78. Coombs v. Anderson, 138 Mass. 376. The mortgage of Maria Eliza and her husband to the Massachusetts Hospital Life Insurance Company is immaterial. It does not appear that the mortgagee ever took actual possession of the land, and the mortgage was discharged on October 16, 1865. A mortgagor of land in possession, and his heirs, are actually seised of the land as against everybody but the mortgagee. Willington v. Gale, 7 Mass. 138. Dolliver v. St. Joseph Ins. Co. 128 Mass. 315. The deed of Gilman Collamore was sufficient in form to bar the entail. Coombs v. Anderson, ubi supra. Exceptions overruled.
158 Mass. 74
Collamore v. Collamore
Massachusetts Supreme Judicial Court
Decided January 6, 1893
Massachusetts Supreme Judicial Court · decided 1893-01-06
<p>Writ of Entry—Devise — Estate Tail — Mortgage — Deed—Barring Entail.</p> <p>A testator to whom certain premises were conveyed in 1799, by his will, which was allowed in 1813, gave one half of his property to his only daughter M., “ and her heirs born of her body forever,” and the other half to his only son J. Upon a petition for partition by J. and M., the premises above mentioned were set off to M. as her share under the will. M. was twice married, and by her first husband had three sons, A., B., and C. M. and her second husband, in 1835, conveyed the premises in mortgage to a certain corporation. M. died in 1845, and by her will she gave the premises in trust for the joint benefit of her sons B. and C., who had the right to terminate the trust, and, upon request, receive a conveyance of the premises discharged of the trust. The trustee was to take the premises subject to the mortgage, which he was to pay; and the mortgage was discharged in 1865. In 1846, A., “ in consideration of five dollars ” paid to him by the trustee, “ and for other good and valuable considerations,” conveyed the premises to the trustee, “ be my right, title, interest, and estate in and to the said parcels of land, ... in whatever manner acquired, whether by devise, descent, or otherwise.” The deed, which was duly recorded, also recited that the conveyance was made for the further assuring of the title of the trustee under the will of A.’s mother, and for confirming to the trustee a full and absolute estate in fee simple therein, and also for the purpose of ratifying a conveyance of the premises with other parcels which had been made by A. jointly with B. and C. to the trustee earlier in the same year. In 1874, the administrator of the estate of C., who had died, conveyed, under a license from the Probate Court, C.’s estate in the premises to B., and in the same year the trustee under M.’s will conveyed the premises discharged of the trust to B. A. died in 1884, and his oldest son, in 1890, brought a writ of entry against B. to recover the premises. Held, that the devise to M. in her father’s will created an estate tail, and, on her death, the estate descended to A , her oldest son; that the mortgage given by M. and her husband was immaterial; that the deed oí A. in 1846 barred the entail; and that the action could not be maintained.</p>
Cited by 1 later decisions — most recently July 1904
1 state decisions
Relies on Dolliver v. St. Joseph Fire & Marine Insurance · Willington v. Gale · Coombs v. Anderson
Good law ✅— No negative treatment on recordhow we know
Decided 1893-01-06
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