Evening journal., 1894-05-26
MARY ]. PATTON LOSES.
The Superior Court Decided
Against Her This Morning.
MR. HILLgs NOTED AN EXCEPTION

Lawfully When He Sold and Trans
ferred the Real Estate-He Had Ample
Power Under the win.
Immediately after the Superior Court
reconvened this morning Chief Justice
Lore read decision in the ejectment
snit of John Doe. on the demise Of
Mary J. Patton VS.. Richard Roe. casual
ejector and James c. Dillon, tenant in
possession.
In the action Mary Jane Patton, the
plaintiff, sought to recover the property
in dispute. situate in the city OF viii.
mington, basing her right and title upon
the will Of her late husband, Hugh Pat
ton, deceased and upon deeds of convey
ance 20 her. from the children and
residuary devisees of the decendeut.
Hugh Patton, the testatOr, died
leaving to survive him his widow,
Mary Jane Patton, the plaintiff,
and four children, Ella NJ. Boughman,
Retta w. Dillon, Elizabeth g. Patton
aud Sadie r Patton. who were bis only
heirs at law aud residusry devisees.
His widow proved the will aud took
out letters testRmentary thereon
Joseph l.. Carpenter. Jr., trustee named
In the will, consented and assumed TO act
as trustee On December "a, 1891
claiming TO act aa trustee, he
conveyed the premises In dis
pute in fee simple to James &
Dillon the defendant, in exchange for
other property In this city. Ia
the spring ard summer following
Dillon made Improvements on the
lands so conveyed Some doubt having
arisen as TO the right Of Mr. Car
penter to exchange the property he con.
veyed the premises TO Dillon for the su m
of 81 600, by deed dated September o.
1893, having first reconveyed to Dillon
the property received from him in &c
change. under deed Of December "a. 1891
On July 81. 1892 Ella M. BsughmAn,
Retta I'M. Dillon, Elizabeth G. Pat.
ton and Sadie R. Patton, conveyed
all their interest to Mary Jane Patton,
the plaintiff She claims that under the
will OF her husband she has the fee
simple title in the disputed property
but Dillon claims like title sundar the
deed Of Joseph l. Carpenter, trustee.
In actions Of eieotment," said the
court, 1.-THE plaintiff must recover upon
the strength of her own title and not
upon defects In the title of others. Her
title depends upon the estate that she
/ took under the will Of her deceased hus.
band. The main question therefore Is,
/ What estate did she take Z The authorities
i have evidently been examined with care
and the law presented and urged with
great force by the counsel in the case
| No parallel case has been produced, Rn6
we are left to interpret the will undei
general rules.
''All these rules 60 to ascertain the in
tent Of the teststor which intent wheI
discovered, must prevail, unless contrary
| to law
by express terms the testator gives I,
/ his wife q life interest. By like expires.
words, he authorizes and appoints JOSEPH
| l. Carpenter, Jr., to be his trustee of al
bis real estate during the life Of his wife
| giving the trustee full power to max,
| good and sufficient deeds Of conveyance
to transfer said property 10 the pur
chaser in fee simple; free from all re
sponsibility and provides compensation
for said trustee out Of the estate in hi
hands.
"The plain Interpretation Of this OK.
press language clothes the said JOSEPH
L. Carpenter, Jr., trustee, with thl
legal estate of the testators realty anC
gives the widow the beneficial interest
and equitable estate therein Careful
consideration Of the language leaves n'
other tenable conclusion.
"Tbe will contemplates and provide
active duties for said trustee; grant
him immunity from all errors and mis-
takes, and provides for him full compen
sation.
If the testator had wished to Civ
his wife the full proceeds of his rea
estate for her life for the betterment o
her condition, and to provide for chang
ing unproductive into productive prop
erty, so that her income might b
increased in certain exigencies, tn
appointmentlof trustee, with the power
named In the will, would be a mos
convenient and not unusual way o
efIecting such purpose.
ut would interpOse between the III
tenant and the residuary devlsees, tn
judgment Of and interposition OF disir
terested trustee to make the change, an
yet protect the interest of all concerned
This would hardly defeat the estate q
the widow, but would rather tend I
make It more hexible and beneficial.
But, aside from this, we have th
unequivocsl language of the testatC
indicating what seems TO us to be a
active trust in said Joseph L. Carpenter
Jr. We are therefore Of opinion tha
under the terms Of the will, durin
the life Of the widow, the leg,
estate vested in the said Joseph
Carpenter, Jr, and that the widow too
only an equitable interest thsreunde
for her lie This view Of the cas-
makes it unnecessary TO discuss the oth'
questions raised. .inasmuch rs the plain
tiff cannot recover in this action wit
the legal estate outstanding in Joseph
Carpenter, Jr trustee under the vii
Judgment must therefore be entered f
the defendant
Mr.. Hilles, for the plaintiff. noted a
exception. Edward q. Bradford reprl
sented the defendant.
James Spence aud Patrick Lyman
Irishmen, were ntturalized this morning.
Trouble over the Forrest Property.
There is talk of contesting the will