Equity Pleading and Practice, Appeal, Parties, Discretionary powers of master, Master's report. Equity Jurisdiction, To set aside conveyance for unsoundness of mind and undue influence. Executor and Administrator. Evidence, Of mental condition, Presumptions and burden of proof, Opinion: exports. Joint Tenants and Tenants in Common.
A defendant in a suit in equity has no ground for appeal from a decree which grants no relief against him and allows him his costs.
A son of a deceased father can maintain a suit in equity against a sister and a brother of the plaintiff, the three being all the children and all the heirs at law of the deceased and the defendant sister being the executrix of the father's will, to set aside conveyances of real estate which were made by the deceased to his daughter when he was insane and which were neither ratified nor avoided by the father during his lifetime, the executrix of the will having no power to ratify such a deed to the prejudice of the heirs of the testator.
In a suit in equity, by a brother against his sister, to set aside a conveyance of real estate alleged to have been made to the defendant by the father of the plaintiff and the defendant when he was insane and under the undue influence of the defendant, where it appears that the father had died, that his will, of which the defendant is executrix, was allowed and that the deed sought to be set aside was made seven years before the date of the will, and a master has found that the deceased was of unsound mind when he executed the deed, that after executing it he at times appeared to be rational but that his disease continued, that he was at no time free from it after giving the deed and that the influence of his daughter over him also continued, the fact of the allowance of the will is not conclusive of the issue in the case, but merely shows that the testator when he executed it was of sufficiently sound mind to make a will.
Where a suit in equity, to set aside a conveyance of real estate made to the defendant by a person deceased on the ground of the grantor's unsoundness of mind and of the undue influence of the defendant upon the grantor when the deed was made, is referred to a master, it is the province of the master to fix the limit of the time relating to which evidence of the grantor's mental condition will be received by him. In the present case it was held that the master could not be said to have gone too far in the exercise of his discretion in admitting evidence of the grantor's mental condition covering a period of eight years after the making of the deed sought to be set aside.
On an exception in a suit in equity to the admission by the master to whom the case was referred of a hypothetical question to an expert, if all the facts assumed in the question were found by the master to have been proved and there was no error of law, the exception will be overruled, although the question was needlessly long and complicated.
The rule, that the occupation of land by one tenant in common is not adverse to his co-tenants and creates no liability to them, does not apply where one co-tenant wrongfully has ousted the others and has compelled them to resort to the courts to establish their rights.
Where one tenant in common of land wrongfully has ousted his co-tenants, his liability to them to account for his occupation is the same whether he occupied the property in person or received rent for it from others.
SHELDON, J.
This appeal is without merit.
1. No relief was given against the defendant William F. Brown, but he was allowed his costs. As to him, the bill was in effect dismissed, and he has no ground of complaint.
2. The plaintiff can maintain the suit. All the heirs of the original owner and the executrix of his will are made parties. In her personal capacity the executrix is the sole defendant in interest. It is settled by our decisions that the deed of an insane person is ineffectual to convey a title to land which shall be good against the grantor himself or against his heirs or devisees, unless it is confirmed by the grantor, when of sound mind, or by his guardian, or after his death by his heirs or devisees. Valpey v. Rea, 130 Mass. 384, and cases cited. Brigham v. Fayerweather, 144 Mass. 48. Busiere v. Reilly, 189 Mass. 518. As to undevised property, the rights of heirs are not affected by a will. In such a case, if the deed has been neither ratified nor avoided in the lifetime of the grantor, his heirs may avoid it after his decease; if the invalid deed was made to one of his heirs, the other heirs or any one or more of them according to their respective interests may avoid it in like manner. Parker v. Simpson, 180 Mass. 334. Caverly v. Simpson, 132 Mass. 462. Sunter v. Sunter, 190 Mass. 449. See Billings v. Mann, 156 Mass. 203. The executor of his will or the administrator of his estate has no power to ratify such a deed to the prejudice of his heirs; Wilcox v. Forbes, 173 Mass. 63; much less can he do so to the prejudice of the other heirs if, being himself an heir, he is also the wrongful grantee named in the deed. This is not the case of the ratification of a contract relating to personal property by which an ordinary indebtedness or liability is created, to be enforced primarily against the executor himself, and against the heirs only under the provisions of R.L.c. 141, § 26, as was the case in Bullard v. Moor, 158 Mass. 418. See Forbes v. Douglass, 175 Mass. 191.
3. No question of ratification by the grantor arises in this case, for his incapacity not only continued but increased continuously until his decease. Gibson v. Soper, 6 Gray, 279, 281.
4. The probate of the will merely shows that the testator was of sufficiently sound mind to make the will; it is not conclusive evidence on the issue in this case. Gibson v. Soper, 6 Gray, 279. Sly v. Hunt, 159 Mass. 151.
5. None of the master's findings are shown to have been plainly wrong, and we find no error in any of his reported rulings. See Long v. Athol, 196 Mass. 497, 508; American Circular Loom Co. v. Wilson, 198 Mass. 182, 203; Atherton v. Emerson, 199 Mass. 199, 211. It was for him to fix the limits of time for evidence of the grantor's mental condition. While he might have made those limits narrower, still it must be remembered that the possibility of a ratification of the deeds was to be passed upon, and we cannot say that he went too far. See Hardy v. Martin, 200 Mass. 548; Jenkins v. Weston, 200 Mass. 488; Howes v. Colburn, 165 Mass. 385; McCoy v. Jordan, 184 Mass. 575. The hypothetical question put to the experts was needlessly long and complicated, and might have been excluded on that ground; but all the assumed facts were found by the master to be proved, and there was no error in law in admitting the question.
6. The defendants do not deny that the plaintiff, upon avoidance of the deeds, is entitled to a share of the net income received from the rented estates; Robinson v. Robinson, 173 Mass. 233, 239; but they contend that this is not so as to the Vine Street property, because that has been occupied by themselves. This is on the ground that bare occupation by one tenant in common creates no liability to his co-tenants. Badger v. Holmes, 6 Gray, 118. Sisson v. Tate, 114 Mass. 497, 501. Kirchgassner v. Rodick, 170 Mass. 543, 545. Carroll v. Carroll, 188 Mass. 558. But this does not apply where one co-tenant has ousted his co-tenants, and compelled them to resort to the courts to establish their rights. That is this case. Silloway v. Brown, 12 Allen, 30, 37, 38, and cases there cited. The female defendant's liability is the same whether she occupied the property in person or received rent therefor from others, just as in McIntire v. Mower, 204 Mass. 233, 237, 238.
7. As the defendants say in their brief that they waive none of the questions raised on the record, we have examined everything so presented; and we are clearly of opinion that there has been no error prejudicial to either defendant.
The final decree must be modified by charging each defendant with the costs of this appeal, and by charging the female defendant with interest upon the sum ordered to be paid by her from and after the date of that decree. R.L.c. 177, § 8. So modified, that decree must be affirmed.
So ordered.