Swift v. Prentice

¶1This case depends on the construction of the deed from John Forbes, the father of Anna, one of the demandants, and from whom they derive title in her right; it being admitted that they are entitled to recover the said Anna’s share in the premises claimed, unless the same passed by the deed of, the said John Forbes. The premises conveyed by that deed are thus described: “ All the real estate, that was set off to the heirs of William Forbes, deceased, on the east side of the road leading from Oxford to Worcester, with the buildings standing thereon, set off to said heirs.” It does not appear that any division of said estate among said heirs was ever made, prior to the deed of the said John ; but it does appear, by the records of the probate court, that the dower of the widow of the said William Forbes was duly assigned, in pursuance of a warrant from the judge of probate; and although it does not appear by the record, that the return of the commissioners was ever accepted by the judge of probate, yet as the return was recorded, its acceptance must be presumed. The dower being thus set off, the residue of the estate may be considered as set off to the heirs, by implication And we have no doubt that the deed of the said John Forbes had reference to the lands remaining to the heirs after the said assignment of dower. The deed was with warranty, and a covenant against incumbrances, which confirms the construction, that the lands set off to the widow were not intended to be conveyed, nor the remainder expectant on the death of the widow. Judgment for the demandants