Omaha daily bee., 1906-04-08

no devise at all; and his parcel Of real
estate, being In the eye Of the law simply
a part OF an undevised residue, was Of
course liable 10 be sold for the payment
OF the iegacies contained In his fathers
win. IL was assets which the executor was
bound 10 apply to that purpose. This exact
point had been determined in the then re-
cent case OF Ellis against Page, Z Cush,
16I; and Mr.. ingalls, was finally compelled
10 see the estate, the undisputed posses
sion Of which he had enjoyed for 50 many
years, sold at auction by the executor Of
his fathers will for S1S5.OOO. not quite
enough 10 pay the legacies TO his cousins,
which legaoies, with interest from the en-
piration OF one year after the testator's
death, amounted at the time Of the sale in
1862 20 $4,000. The Messrs Jones them
selves purchased the estate at the sale,
deeming the purchase a good investment
Of the amount OF their legacies and Mr..
Ingalls, instituted a system of stricter
economy in his domestic expenses and pom
dered much on the uncertainty Of the law
and the mutability Of human affairs.
Another Claimant fn sight.
BY one OF those curious condolences
which so often occur. Messrs. William and
Arthur Jones had scarcely begun TO en-
Joy the increased supply Of pocket money
afforded them by the rents of their newly
acquired property. when they each re-
ceived one morning q summons TO appear
before justices Of the superior court, ito
answer unto John Rogers In a writ of
entry" the premises described In the writ
being their newly acquired estate.
The Messrs. Jones were at first rather
startled by this unexpected proceeding; but
Jas they had, when they received their
deed from Mr.. ingalls, executor, taken the
precaution to have the title to their estate
examined by conveyancer, who had re-
ported that he had carried his examina-
ton as far back as the beginning of the
century and had found the title perfectly
clear and correct, they took courage and
waited for further developments. II was
not long, however, before the facts upon
which the writ of entry had been founded
were made known. II appeared that for
some time prior to 1850 the estate had be-
longed TO one John Buttolph, who died in
that year. leaving a will in which he de-
vised the estate ito my brother william"
Thomas Buttolph had held the estate until
1775 when he died, leaving an only
daughter, Mary, at that time the
wife of Timothy Rogers. Mrs. Rog-
ers held the estate until 1890 when she
This estate she devised to her daughter,
who subsequently, in 1900. conveyed It to
Mr.. Thomas ingalls,, before mentioned.
Peter Rogers, the eldest son Of Mrs Rogers
was non-compos, but lived until the year
1854, when he died at the age Of Is. He
left no children, having never been mar
ried. John Rogers, the demandant in the
writ Of entry, was the oldest son of John
Rogers. the second son of Mrs. Mary
Rogers. and the basis of the title set up
by him was substantially as follows:
Descent of Estate Tail.
He claimed that under the decision in Hay
ward against Howe, Il Gray 40, the will of
John Buttolph had given to Thomas But
tolph an estate tail, the law constituting the
intention Of the testator to have been that
the estate should belong to Thomas But
tolph and TO his issue as long as such issue
should exist, but that upon the failure OF
such issue whenever such failure might
occur, whether at the death of Thomas or
at any subsequent time the estate should
go to William Buttolph. II had also been
decided in Corbin VS.. Healy, 20 Pick. 5l4,
516, that an estate tail does not descend in
Massachusetts,. like other real estate, to
all the children of the deceased owner. in
equal shares, but according to the old
English rule, exclusively to the oldest son,
II any, and to the daughters only in default
of any son, and II had been further decided
In Hall v. Priest. 8 Gray. IS, "a. that an es-
tato tail cannot be devised or in any way
affected by the will Of a tenant In tail.
Mr.. John Rogers claimed then that the
estate tail given by the will of John But
tolph to Thomas Buttolph had descended
az the death OF Thomas to his only child.
Mary Rogers; that at her death, instead of
passing, as had been supposed at the time.
by virtue Of her will, to her daughter, that
will had been wholly without effect upon
the estate, which had, in fact, descended
to her oldest son, Peter Rogers. Peter
Rogers had indeed been disseized in 1900, IL
not before by the acts OF his sister in TAX
ing possession Of and conveying away the
estate; but as he was a non-compos during
the whole Of his long life, the statute OF
limitations did not begin to run against
him aid his heir in TAIL namely John
Rogers, the Oldest son of his then de-
ceased brother, John, was allowed by Mass.
Gen. st. c. las, par. 5, ten years after his
uncle Peters death, within which to bring
his action. AS these ten years did not ex-
pire until 1864, this action. brought in 1868,
was seasonably commended, and It was
prosecuted with success Judgment in his
favor having been recovered by John Rog-
ers in 1865.
Work of bright Lawyer.
The case OF Rogers v. Jones was nat