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Gaylord and Others v. Dodge.

time advancing, it must bring that again; but I shall not sell it, as it is in a good location, and will let the children have it.

- Yours truly,

“N. B. DODGE. “Do not let any one know but that you have paid for half the White property.”

To this Joshua C. Dodge responded by the following letter:

“Boston, April 18th, 1859. “FATHER, Yours of the 9th was duly received and contents noticed. I have told Fanny all about the arrangements you proposed making in case I should be taken away, and she would follow the injunction of your letter to me, in that event.

“ Yours truly,

«J. C. DODGE." The “Fanny" mentioned in this letter was the wife of J. C. Dodge, and they have no children.

The appellee testified, that “the fact that any part of this property purchased from White had been conveyed to Joshua C. Dodge, was first communicated to her by somebody, along in the fall of the year after the purchase, until which time she had supposed the deed from White and wife, for all the property bought from White, had been executed to her husband. It was so conveyed without her knowledge or consent, and her husband never spoke to her of its having been so conveyed.”

November 16th, 1860, a portion of the realty conveyed to Joshua C. Dodge was by him and his wife conveyed to the decedent, Nathan B. Dodge, for his life, remainder to appellant Martha A. Gaylord, for her life, remainder in fee to her children, Thomas F. and Harry C. Gaylord. The deed contains some limitations on the power of said Martha A., and provides for cross remainders between her children.

March 5th, 1862, Joshua C. Dodge and wife conveyed

Gaylord and Others v. Dodge.

the residue of this realty to the decedent for his life, remainder to Mary J. Chadwick for her life, remainder in fee to her children, Nathan R., Lewis A., and Ida Chadwick, with similar limitations and cross remainders. Lewis A. had died before the filing of the complaint.

After the execution of the deeds from White, the decedent made expensive improvements on the realty described in the complaint, received rents, and paid taxes and assessments of all kinds.

Joshua C. Dodge, whose deposition was read in evidence, testifies, that he is the son of decedent, Nathan B. Dodge, and is thirty-eight years of age; that up to 1857 he resided in Lafayette, and did business as a partner with his father; that he then removed to Boston, and has resided there since; that he and Martha A. Gaylord, Mary J. Chadwick, and Mrs. Granger are the children of the decedent by his first wife, and that Nathan B. Dodge, Jr., is the only child by the last wife—these being the sole heirs at law; that at the time of the conveyance to him from White, the condition of his father's children was as follows: Mrs. Gaylord was a widow with two children (the eldest being now seventeen years old), and without any means; Mrs. Chadwick had two children, a third (Ida) being born soon after, and was without means except the carnings of her husband as a clerk; Mrs. Granger's husband was in comfortable circumstances, and the witness had ample means of his own; the remaining child, Nathan B. Dodge, Jr., (now about fifteen years of age) was unprovided for; their conditions remained about the same, except as changed by these conveyances and his father's death; that witness paid no part of the consideration to White, and knew nothing of the purchase from him, until he received, in due course of mail, at Boston, a letter from his father, attached to his deposition, which letter he answered by mail, and the answer had been found at Lafayette, and this he also attached; that the deeds executed by himself and wife were prepared at Lafayette, and forwarded or brought to Boston by his father, and executed by himself and wife at the

Gaylord and Others v. Dodge.

date of the acknowledgments, and returned to his father; that for none of these deeds was any consideration paid to him; that the relation between the witness and his father had always been of the kindest and most confidential character; that before the purchase from White there was a verbal understanding between the witness and his father, that his father “should provide for my two sisters, Mrs. Gaylord and Mrs. Chadwick, and give them more property than he would give to his other children; there was also an understanding between us, that, in consideration of his so doing, I would give my sister, Mrs. Gaylord, two hundred dollars per year, during the life of my father;" that the witness had made this contribution, while his father lived.

Witness received a deed dated December 16th, 1861, for some other property, purchased and paid for by his father, and subsequently, on his father's request, executed a deed therefor, dated February 25th, 1864, to his father for life, remainder in fee to Nathan B. Dodge, Jr.

He further testified, that his father during his life had given some money to Mrs. Granger.

It further appears that the decedent in his lifetime conveyed a part of the real estate conveyed to him by White to his son Nathan B. Dodge, Jr., which, with that conveyed to the latter by Joshua C. Dodge, and the improvements made thereon by the decedent in his lifetime, equaled in yalue the advancement to either of the other children.

The decedent died intestate, and his personal estate, after the payment of all debts, &c., will amount to sixty thousand dollars. He was also seized at his death of the real estate conveyed to him by White, except that part thereof conveyed by him to his son Nathan B. Dodge, Jr.

ELLIOTT, J.-Tenancies in dower, having been abolished by statute, no longer exist in this State. The rights of a surviving wife in the real estate of her husband are those created by statute alone, and hence the question presented here must be determined by reference to the provisions of the statute on that subject.

Gaylord and Others v. Dodge.

These rights, so far as they are involved in this case, are defined by sections 17 and 27 of the statute of descents, which are as follows:

“Sec. 17. If a husband die testate, or intestate, leaving a widow, one-third of his real estate shall descend to her in fee simple, free from all demands of creditors; Provided, however, That where the real estate exceeds in value ten thousand dollars, the widow shall have one-fourth only, and where the real estate exceeds twenty thousand dollars, one-fifth only as against creditors.”

“Sec. 27. A surviving wife is entitled, except as in section 17 excepted, to one-third of all the real estate of which her husband may have been seized in fee simple, at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lands in which her husband had an equitable interest at the time of his death,” &c.

There is no conflict between these sections when construed together. Section 17 defines the rights of the widow as against creditors; whilst the 27th section recognizes the exception made in favor of creditors in section 17, and defines the rights of the surviving wife as against heirs and purchasers either from or through the husband in his lifetime, and defines the nature and character of the estates and interests held by her husband in which she is entitled to share.

In the case now before us, 110 question is presented as to creditors; and, hence, we must look to section 27 in determining the nature of the estate or interest that must have been held by the husband in the land, to entitle his surviring wife to a share therein. That section declares that she is entitled to one-third of all the real estate of which her husband may have been seized in fee simple, at any time during the marriage, and in the conveyance of which she may not have joined, in due form of law; and also of all lands in which her husband had an equitable interest at the time of his death.

Gaylord and Others v. Dodge.

Here, the land in controversy was conveyed by White, not to the decedent, but to Joshua C. Dodge; but it is claimed by the appellee's counsel, that, by virtue of that conveyance, Nathan B. Dodge, the decedent, became seized in fee of the.property. The argument in support of this proposition is, that the conveyance to Joshua C.Dodge was in trust; that his title was a nominal one merely; that the property was subject to the exclusive use, control, and jus disponendi of his father, Nathan B. Dodge; and that the 13th section of the act concerning trusts and powers (1 G. & H. 652) executed the use, and invested Nathan B. Dodge as cestuy que use with the fee simple.

The provision referred to reads as follows:

"A conveyance or devise of lands to a trustee whose title is nominal only, and who has no power of disposition or management of such lands, is void as to the trustee, and shall be deemed a direct conveyance or devise to the beneficiary.”

In this case the deed from White to Joshua C. Dodge is. an absolute conveyance in fee. It contains no declaration of trust in favor of any one. And though the purchase money was paid by Nathan B. Dodge, and the conveyance was made by his direction to Joshua C. Dodge, without any consideration being paid therefor by the latter, still, under section 6 of the act just referred to, no use or trust resulted therefrom in favor of Nathan B. Dodge.

The 13th section of the act, copied above, clearly applies. where the trust is expressly declared and the beneficiary named in the conveyance, the title of the trustee being nominal only. In that case the statute operates on the conveyance itself, and executes the use, by declaring the conveyance void as to the trustee and holding it to be a direct conveyance to the beneficiary; but it is difficult to see how it can apply so as to invest the legal estate in the beneficiary when the conveyance is absolute on its face and neither declares a trust nor names a beneficiary. But we

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