#### James Smithwick and Another *versus*William Jordan.

Where a conveyance of land was obtained by fraud and imposition, and the same was acknowledged and recorded, it did not operate such a disseisin as disabled the grantor afterwards to devise the estate *so*conveyed.

This was a writ of entry, wherein the demandants claim possession -of certain real estate in Boston, of which their grandmother, *Mary Lobb,*died seised. It was admitted, upon the trial of the general issue, which was had before the chief justice at the last November term in this county, that the demandants were sole heirs at law of the said *Mary,*and that she died seised of the premises •demanded; unless she had, before her death, alienated the same to the tenant.

To show this, the tenant produced in evidence three several .deeds, signed, sealed, delivered, and acknowledged, by the said *Mary,*and duly recorded, conveying the land demanded in this ■action to the tenant; all made after the will hereinafter mentioned.

*107There being evidence of extreme old age, and habits of intoxication, in the supposed grantor, and of great inadequacy of consideration, the jury were instructed that, if they believed those deeds to have been obtained by imposition, misrepresentation, or by taking advantage of the imbecility of mind of the said *Mary Lobb,*they must return a verdict for demandants, notwithstanding her supposed conveyances, *(a)***A verdict was returned for the demandants.

There was offered in evidence, by the tenant, an instrument pur porting to be the last will and testament of the said *Mary Lobb,*and approved and allowed as such, wherein she devises the demanded premises to one *Francis Can pbdl Smithwick*in fee, then a minor of the age of seven years; provided that the said *Francis*was not to come into possession, * occupy, or have any advantage of said estates, during his minority, except through his guardian, afterwards appointed. She then appoints the tenant to be guardian of the said *Francis,*until he shall attain the age of twenty-one years, if he shall so long *live;*directs the guardian to lease, occupy, and improve, the estates, and, from the rents and profits, to maintain and educate the said *Francis;*appoints the tenant executor, and provides, in case her personal estate shall be insufficient for the payment of her debts, that the executor shall be repaid all such sums as he may advance for that object, out of the first rents and profits which he may receive as guardian.

The said instrument was rejected by the judge, in order that the jury might distinctly settle the question of fact, relative to the above-mentioned conveyances; it being contended, for the demandants, that the will was legally revoked by the said conveyances.

If the Court should be of opinion that the tenant had lawful right to defend his possession, under the said will, in this action, the verdict was to be set aside, and the demandants to become nonsuit; otherwise, judgment was to be rendered for them upon the verdict.

*W. Sullivan*and *Knapp,*for the demandants, contended, 1.

That the authority to appoint testamentary guardians is given to fathers only by the statute of 12 *Car.*2, c. 24, (1) and the appointment in this case being void, the right of the tenant to the possession of the demanded premises, which he can now claim only in virtue of such void appointment, fails of course. Then the demandants, as heir-i at law of the testatrix, have a right to the possession, until the dey isee shall attain his full age.

*1082. That the execution and recording of the deeds, being tantamount to livery and seisin, operated to transfer the possession to the tenant, and though the deeds were fraudulently obtained, yet *Jordan*was at least a disseisor, and the will could not operate to pass lands of which the testatrix did not die seised.

*3. That the tenant, having so possessed himself of the estate by virtue of fraudulent conveyances obtained by him, ought not to be permitted to maintain that possession under his appointment as guardian.

It was also suggested that, if the tenant could lawfully defend his possession by virtue of his guardianship, he should have pleaded the matter specially. (2) If judgment was rendered against the demandants in this action, the estate would enure to the tenant in his own right, and he would hold it not only against the demand-ants, the heirs at law of the testatrix, but against his own ward when of age.

*jDavis*(Solicitor-General) and *Munro*for the tenant.

(a)

 Evidence of old age, habits of intoxication, and inadequacy of consideration, alone, are insufficient to render void a deed at law.

(1)

 Vide 1 *Black. Com.*462.

(2)

12 *Mass. Rep.*373, *Dunbar*vs. *Mitchell.*

Parker, C. J.,

delivered the opinion of the Court. The title of the demandants, as heirs, being interrupted by the devise of their ancestor, — if that devise be good, it is plain that they cannot maintain their action for possession of the premises. The will containing the devise has been regularly proved and allowed in the Supreme Court of Probate ; and nothing can now be objected to the interest claimed under it, but some legal disability of the testatrix.

It is suggested that she was not seised of the estate at the time the devise was made; and so, by our statute of wills, she had no right to dispose of the same by will. The principle is correct, but the fact to which it is to be applied does not exist. The testatrix was not disseised at the time of making her will, nor at the time of her death. For, although she had signed and sealed instruments, purporting to convey her title to the tenant, yet those instruments never operated to pass the estate; and it does not appear that any possession was taken under them until after her decease.

The deeds read in evidence cannot operate as a revocation of the will; because, by the verdict of the jury, it is established that the testatrix never, in a legal sense, made such deeds — her extreme old age and imbecility having been taken advantage of, by the pretended grantee, to procure them, (a)

*109* But it is said that, the estate of the devisee being postponed by the will until he shall arrive at full age, the fee in the mean time rests by descent in the demandants, subject to be defeated by the entry of the devisee when he shall come of age.

We think it is not so. A present estate in fee was devised, and it was the possession only which was postponed; so that the title of the demandants is wholly cut olF. And the words of the will are sufficient to create a trust estate in the tenant, by which he may hold the estate, for the purposes for which the trust was created, until, by the will, the devisee can take possession for himself. The verdict must be set aside, and the demandants be called.

*Demandants nonsuit.*

(a)

 This is a case within the peculiar jurisdiction of a court of equity; and not rclievable at law, unless there were other material facts not reported.— *Fonb. Equ. Bl.*c. 2, § 3, and note. — *Jackson*vs. Croy, 12 *Johns.*427. — *Hallenbeck*vs. Dewitt, 2 *Johns.*403. — *Parker*vs. *Parmele,*20 *Johns.*130.— *Vrooman*vs. Phelps, 2 *Johns.*177. — *Wigglesworth*vs. Steers, 1 *H. & M.*70. — *Campbell*vs. Ketcham, 1 Bibb, 406. — *Arnold*vs. Hickman, 6 *Munf.*15. — *Seymour*vs. Delancey, 3 Cowen, *445.—Rutherford*vs. Ruff, 4 *Dessaus.*350.