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32 Mass. 462

De Wolf v. Brown

Massachusetts Supreme Judicial Court

Decided September 15, 1834

Massachusetts Supreme Judicial Court · decided 1834-09-15

<p>By a contract under seal between a father and his son, it was agreed, that the sop should take the superintendence and charge of a farm belonging to the father, during the term of five years, and should devote his skill and labor to its cultiva tian; that he should take charge of such cattle and other stock, as the father had already placed thereon or might place thereon during the term, and should be af liberty to use and apply all such part of the produce of the farm as should be necessary for the purpose, to the cultivation of the land and to the maintenance oí himself and his family, and of the laborers and stock thereon; that he should, from time to time, render to the father an account of the residue, and dispose of the same according to his 'directions, and should also keep an account of the expenses' incurred in the cultivation of the farm, to be rendered to the father, from time to time, on request, which account, if reasonable and conformable to the instructions of the father, should be paid from the surplus produce of the farm; that he should be at liberty to cut any wood on the land for fuel, fencing and repairs of buildings; and that he should be allowed out of the surplus produce of the farm, for his care of the farm, the sum of $200 annually. By the will of the father, the farm in question, together with the stock and farming utensils thereon, were devised to trustees during the life of the son, upon the trust, that they would permit him to occupy it during his life, or would let it and pay over to him the profits during his ife, with remainder over to the wife and children of the son. After the death of the father, but before the will was proved, the farming utensils, stock and produce of the farm were attached as the property of the son. It was held, that the son acquired no legal title to the property, either by the contract or the will, but that it remained in the father during his lifetime, and upon the probate of the will, vested in the executors, by relation, from the time of the decease of the father, upon the trusts set forth in the will.</p>

Decided 1834-09-15

Putnam J.

¶1drew up the opinion of the Court.* We think that the counsel for the defendant judged wisely in not arguing this cause. There is no legal or equitable defence. We have examined the will of Thomas Melvill, and it is perfectly clear, that the testator did not convey the property, real or personal, to his son, Thomas Melvill junior. The legal title remained in the father during his lifetime, and upon the probate of his will it vested in the plaintiffs, by relation, from the time of the decease of the testator, upon the trusts set forth in the will. The father was a gentleman of large property. He was able and willing to make a proper provision for his stin and family by employing him to carry on a large farm. By the terms of the leases which make a part ol the case, the son was to have a salary; his family were to be supported ; the charges for labor and other expenses of carrying on the farm were to be allowed ; and the son was to account to the father for any surplus that should remain. And the surplus was to be entirely at the disposal of the father. But *465in the mean time the right of property in the real and personal estate remained in the father. The son was authorized to carry on the farm, to use the tools and implements of husbandry, to receive the produce of the land and stock ; and was to render an account according to the terms of the lease. But it is perfectly clear, that the son, by that arrangement, acquired no legal title in the real or personal property. The plaintiffs, after the probate of the will, had all the right and title which the testator had, in the property which the defendant attached as belonging to the son ; and they are legally entitled to maintain this action. It was a question of property properly submitted to the jury, and the judgment is to be rendered according to the verdict.

¶2 Shaw C. J. did not sit in the case.
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