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tributed to cause the accident; no more and no less. The jury were so instructed in full and appropriate language.
Motion. It is urged that the plaintiff, in riding with his foot upon the step of the car, was guilty of contributory negligence, and therefore cannot recover. Even if it be admitted that the plaintiff's conduct was negligent in this respect, still it cannot be con. sidered as contributing to the injury, if it was independent of and preceded the negligence of the defendant, and the defendant, by the exercise of ordinary care, might have avoided the injury. Atwood v. Bangor, Orono & Old Town Railway Co., 91 Me. 399, 40 Atl. 67. That the plaintiff's negligence, if he was guilty of negligence, preceded and was independent of the negligence of the defendant, cannot be questioned. It was light enough to plainly distinguish persons and objects. The defendant's team had ample room in which to pass. The teamster was seated 12 feet in front of the hub of the wheel which struck the plaintiff. He was driving at a walk. He could see the car, the people upon the platforms, and the step. Before his horses' heads reached the front platform, bis jigger was scraping against the car. He could have seen the whole situation and avoided the accident by the exercise of ordinary care. Instead of that, he kept sturdily on bis way, smoking his pipe, his reins hanging loosely in his hands, and apparently relying upon the strength of his jigger to sweep all obstructions from his path.
Motion and exceptions overruled.
administrator was therefore not liable for the rents and profits received by intestate's father after her death.
Appeal from Superior Court, New Haven County; John M. Thayer, Judge.
Final accounting by Frederick S. Ward, as administrator of the estate of Mabel I. Stevens, deceased. From a decree disallowing the administrator's account, he appeals. Reversed.
Samuel Fessenden and Seymour C. Loomis, for appellant. Henry C. White and John Q. Tilson, for appellees.
BALDWIN, J. The appellant's intestate was the only surviving child of Ellen M. Stevens, deceased, who was the wife of Samuel A. Stevens, and one of the three surviving children of Henry Ives, of New Haven. Henry Ives died intestate in 1839, owning several parcels of real estate. In an undivided two-fifths of one of these (a house and lot on Wall street in New Haven), dower was assigned to his widow; and the other three-fifths, under a partial distribution of his estate, became the absolute property of Ellen M. Stevens in 1864. The widop and her daughter, with the husband of the latter, to whom she was married when her facer died, resided together in the house until te death of Mrs. Stevens, intestate, in 1881 One of the sons of Henry Ives died unmarried and without issue in 1871. The other (Frederick lves) died, intestate, leaving a widow and children, in 1883. In 1886 the widow of Henry lves died, and distributors were appointed by the court of probate for the district of New Haven to distribute what of his estate had not been previously distributed, including the proceeds of certain land sold after his death, by the widow and heirs, for $9,278.67. They set to Mabel I. Stevens, described as "a daughter of Ellen M. Stevens, deceased, and a granddaughter of said Henry Ives, deceased," two undivided fifths of the Wall street real estate, at their appraisal of $7,200, and $3,539.34 of the proceeds of the lands so sold, amounting to “$12,739.34, set to Mabel Ives Stevens, subject to the life interest therein of Samuel A. Stevens, husband of said Ellen M. Stevens, as tenant by the curtesy." To Susan J. Ives, the widow of Frederick Ives, there was set absolutely a third of the balance of the proceeds of the lands sold, and the other twothirds was divided among and set to his children, together with a parcel of real estate on East street at an appraisal of $9.000, in which each received an undivided interest, “subject to the dower interest therein of said Susan J. Ives." The return of this distribution was accepted in 1886 by the court of probate, and no appeal was ever taken from the decree of acceptance. Mabel I. Stevens was then a child of 13. She lived with her father, Samuel A. Stevens, in the Wall street house, until 1898, when she died unmarried and intestate. Prior to that time a brick block had been erected, at the ex. pense of Mabel I. Stevens, on a part of the
(75 Conn. 598)
Appeal of WARD. (Supreme Court of Errors of Connecticut.
April 22, 1903.) DESCENT AND DISTRIBUTION-CURTESY-SEISIN-ESTATES IN REMAINDER-DISTRIBU
TION-ELECTION-ACQUIESCENCE. 1. Where on intestate's death an undivided two-fifths of certain real estate was assigned to his widow as dower, and the other threefifths was distributed to his married daughter, who resided on the property with her husband, and died intestate prior to the death of the widow, the tenancy by curtesy of the daughter's husband in the property extended only to the undivided three-fifths of the property of which his wife was seized in her lifetime, and did not attach to the widow's dower interest on her subsequent death.
2. On the death of intestate's grandfather, two-fifths of certain real estate was assigned to the grandfather's widow as dower, and the remaining three-fifths was distributed to intestate's mother. On the death of the widow subsequent to the death of intestate's mother, two-fifths of the property was distributed to intestate as a part of the distribution of her grandfather's estate, subject, however, to a life estate in her father. This distribution was accepted by the probate court, and intestate lived with her father, and permitted him to use the property and receive the rents and profits during her life, without objection until her death, which occurred several years after her becoming of age. Held, that intestate thereby elected to take the property under the distribution of her grandfather's estate, and that her
I 1. See •Curtesy, vol. 15, Cent. Dig. $ 24.
Wall street lot not occupied by the original, Appeal, 69 Conn. 611, 616, 38 Atl. 392. This house. The appellant's administration ac
would have involved expense and delay. 11 count did not charge him with any of the would have given rise to several questions of rents and profits received from this block, conflicting right. One was as to the proper and the decree of probate which is the sub division of the proceeds of the land sold, and ject of the present proceeding ordered him to the dower right, if any, of the widow of Fredchange the account so as to charge himself erick Ives. Another was as to the claim set with two-fifths of such rents and profits from up by Samuel A. Stevens to a tenancy by the the date of the death of Jabel 1. Stevens. curtesy in whatever land had descended to All the rents and profits had been collected,
his deceased wife. Under these circumstanever since the block was erected, by Samuel ces all the parties interested or claiming to ... Stevens, and appropriated to his own use,
be interested in the undistributed estate forunder a claim of right as tenant by the cur. merly belonging to Henry Ives (or those astesy; and, as to three-fiftlis of them, it is suming to represent them) apparently concurconceded that this claim is a proper one. red in the endeavor to have their respective
A tenancy by the curtesy does not exist in rights settled and determined by probate prolands in which the wife had only an estate ceedings in the form of a distribution of it. in remainder expectant upon a life estate The result of this family arrangement was created for the benefit of another, which did the appointment of distributers, and their renot terminate during coverture.
turn as made and accepted. By this return Oviatt, 58 Conn. 174, 20 Atl. 410, 7 L R. A. the share which would have been set in fee 693. Dower is an estate favored by the law, to Ellen M. Stevens, the daughter of Henry and may exist in equitable remainders. Ives, had she been living, was set in fee to Greene v. Huntington, 73 Conn. 106, 113, 46 Mabel I. Stevens, ber sole heir at law. It Atl. 883. Estates by the curtesy are not was the statutory duty of that court, before favored. Todd v. Oviatt, 58 Conn. 191, 20 accepting it, to ascertain who were the heirs Atl. 440, 7 L, R. A. 693. The considerations of Henry Ives, and entitled to receive the eswhich exclude it in case of a remainder ex tate to be distributed. Mack's Appeal, 71 pectant upon an undetermined freehold es Conn. 122, 128, 41 Atl. 212. Its acceptance tate apply equally to the case of a reversion. imported a judicial finding that Mabel I. SteThe seisin of Mrs. Stevens when occupying vens was one of them, and this was conclusive the Wall street property together with her as to that point upon all parties in interest, mother was only such as attached to her own unless the decree should be set aside on apundivided three-fifths. Of the two fifths now peal. Kellogg v. Johnson, 38 Conn. 269. It in question the seisin was in the dowress. had a similar effect as settling the right of the The tenancy by the curtesy, therefore, of Mr. widow and children of Frederick Ives to reStevens, extended by law only to the undi. ceive what would have been set to him, had vided three-fifths of the Wall street property, he been living. to which his wife had an absolute title.
The distributers not only set the inheritIt does not, however, follow that he was ance of Ellen M. Stevens to her daughter, accountable to this appellant for the rents but set it “subject to the life interest therein ind profits which he had collected from the of Samuel A. Stevens, husband of said Eltenants of the remaining two-fifths. The pa len M. Stevens, as tenant by the curtesy." per title of the appellant's intestate to that This treated the estate distributed as subject two-fifths is derived from the distribution of
to a burden to which it was not legally subpart of her grandfather's estate .in 1886. ject. Presumably, the appraisal at which The estate so distributed, or that in which it the estate was set to her was reduced to the originally consisted, had, upon his decease, extent of the supposed incumbrance, for the descended to his heirs at law as tenants in whole estate to be distributed was appraised common, subject to his widow's claim of in connection with and for the purposes of dower. It might have been distributed among the distribution, and it was the evident inthem in severalty immediately upon the as tent of the distributers to divide it into equal signment of dower. Webster v. Merriam, 9 halves, between the two stocks of descent Conn. 225. The postponement of a distribu which had survived to the second generation. tion of the real estate until the decease of the There is no occasion to inquire whether the dowress did not alter the course of descent. court of probate had by law jurisdiction thus T'he distribution, whenever made, would re to incumber the Wall street property, when late back to the death of the testator; sim set to the appellant's intestate. Having done ply turning an estate in co-tenancy into an what all the parties then before it asked it estate in severalty. All the heirs had died to do, or acquiesced in its doing, its decree, prior to the distribution now in question. never having been appealed from, is concluThe share which would otherwise have come sive upon them and their privies, among to each, therefore, belonged to his estate, and whom are the appellees in the present case, should have been distributed to his estate. who objected to the allowance of the appelKingsbury v. Scovill's Adm'r, 26 Conn. 349; lant's administration account. Gates v. Treat, Holcomb y, Sherwood, 29 Conn. 418; Great 17 Conn. 388. It is true that Mabel I. Stehead's Appeal, 42 Conn. 3i4; Hewitt's Ap- vens, at the date of the distribution, was a peal, 53 Conn. 24, 37, 1 Atl. 815; Dickin child, and presumably was represented by son's Appeal, 54 Conn. 224, 6 Atl. 422; Hale's her father and natural guardian, whose per
sonal interest was adverse to hers. She came grandfather's estate by her silence and inof age, however, in 1894, and lived until 1898. action throughout nearly four years whicb During the entire 12 years between 1886 and elapsed between her majority and her death. 1898 the distribution stood absolutely unques Regarded as a family settlement, it could tioned, and by her conduct after coming of not bind her with respect to its reference to age she sufficiently manifested her assent to the tenancy by the curtesy, except by her the family arrangement resulting in the dis express or implied consent, but with that it tribution.
could. Her conduct manifested an election Each of the parties named in the distribu to give such consent, and thus secure the benticn as beneficially entitled, including Samuel
efits which the distribution purported to conA. Stevens, has taken and held possession un
fer upon her. Her administrator properly der it, and according to its terms. Mabel
recognized the position which she had thus 1. Stevens lived during her whole life upon
taken, by inventorying the property as subthe land in question. She never, so far as
ject to a life estate in her father, and his
administration account must be settled on appears, made any demand upon her father
that basis. for an account of the rents and profits, although her money had been used to increase
There is error. The judgment of the suthem. She never appealed from the decree
perior court is set aside, and the cause reaccepting the return of distribution. She
manded, with directions to reverse the denever asked a court of equity to remove
cree of the court of probate. In this opinion what at least was a serious cloud upon her
the other Judges concurred. title. Both she and the appellees, or those to whom the appellees stand in privity, have
(75 Conn. 522) received and enjoyed all that the distri
CAHILL et al. v. CAHILL et al. bution purported to give them. The appel (Supreme Court of Errors of Connecticut. lees can claim no right which she has waived.
April 17, 1903.) Brown v. Wheeler, 17 Conn. 345, 350, 44 Am.
For majority opinion, see 54 Atl. 201. Dec. 550. She had no title in severalty to the two-fifths interest in the Wall Street HAMERSLEY, J. (dissenting). The plain. land, except under this distribution. The tiffs were bound to prove that Julia Cabill appellees are relying upon her several title. owned and possessed the locus at the time If not a good title, by reason of the conclu of her death. This was essential to estabsiveness of the decree wbich gave it to her, lish that legal title in the plaintiffs, without it is under what was substantially a family
which they cannot recover. Property may be agreement, to which she elected to conform acquired through any kind of lawful convey. Pomeroy's Equity Jurisp. $ 850. If she,
ance from its owner. This is the principal, claiming under this decree, was not bound to and for the great mass of property the only, do as she did, and accept it in its entirety,
mode under our law of acquiring ownership. she was bound to take steps within a reason. The fact of conveyance may be established able time to set it aside or correct it. The by any appropriate evidence, and involves time within which she could appeal expired proof of the person who made the transfer, in November, 1895. Pub. Acts 1885, p. 475,
his ownership of the property, and the vac. 110. The appellant filed an inventory of
lidity of the transfer as made. Where the her estate in October, 1898, shortly after ber conveyance is by writing, and especially decease, in which the Wall street property
where the law requires it to be by writing, it was appraised at a sum reached by deducting must be proved by the production of the from its value that of a life estate in Samuel original writing. When the writing has been A. Stevens. So far as appears, up to that
lost, its existence and contents may be provdate no action for equitable relief against ed by relevant, secondary evidence. As own. her father's claim to such an estate in the
ership draws after it possession, and posseswhole of the property had ever been in sion, especially of personal property, is often stituted by her, or by her heirs or repre a badge of ownership, possession may become sentatives; nor had any such action been a relevant fact in proving the existence and instituted when the court of probate, more contents of such writing. It may be that all than three years afterwards, passed the de evidence of a conveyance, primary or secondcree appealed from. She had had a full op ary, is wanting, and the possessor holds propportunity, after coming of age, to elect erty without a conveyance from any one. whether to claim title to the premises under For some cases of this kind the law pro. her mother, by proper proceedings in the set
vides other modes of acquiring property, viz., tlement of her mother's estate, or under her possession and user which is not by virtue grandfather, by the distribution of 1886. In of another's right from time immemorial, or the inventory of her mother's estate, which such possession for a fixed period unbroken had been filed in the court of probate in and unchallenged. The latter mode of ac1881, there was no mention of any rever quisition is confined mainly to land; the for. sionary interest in two-fifths of the Wall mer mainly to intangible rights in property, street property. Mabel I. Stevens in 1894 generally described as easements. Property could have had it inventoried. She took no in these rights may be acquired by prescripsteps in that direction. She manifested her tion as well as by grant. The property is election to abide by the distribution of her
deemed to originate in a grant By its very
nature it is created as property through the proved such possession for 14 years only, his assent, voluntary or compelled, of the owner ownership is not established; and, as bear. of the tangible thing it burdens. Ownership ing on the second defense, that, if the eviof the easement is acquired through a valid dence admitted as relevant to the fact of a grant, whether recent or ancient; but such deed made 10 years before by A. to B. grantownership may be acquired through posses ing the right of way satisfies the jury that sion for time immemorial as truly and as ful such a grant was made, B. has established ly as by a valid grant. This mode of ac
his ownership by actual grant, although the quisition may rest in part on the effect of oc deed has been lost, and that the fact that B. cupancy, which, as to movables, is the foun actually used the way at the time of the dation of separate property rights; but some alleged grant and afterwards might be consupport is to be found in the elementary sidered, so far as that fact might be relevant principle of jurisprudence which forbids the to the actual making and terms of the allitigation of claims unsupported by facts leged grant. Such a charge might be subwithin the memory of man. The length of stantially correct, but it would be incorrect this period has fluctuated, but is now for the if the court should further charge that, if the most part an arbitrary term. Acquisitive jury cannot find a possession for more than prescription is illustrated when one prescribes 14 years, and are not satisfied that A, made in a que estate, but for the most part it is a grant 10 years before, by the evidence not used in the English law in its direct relevant to that fact, they may consider the form. Its substance is secured through a le evidence of possession for 14 years and the gal fiction. Instead of asserting an owner.
evidence relevant to the upproved grant toship acquired by immemorial usage or pos gether, and from the whole evidence thus session, the owner is permitted to assert an considered may presume an actual grant. ownership acquired by some indefinite and The error centers in the inaccurate use of nonexistent grant, and the facts which estab the word "presume." Possession may conlish his acquirement of ownership by pos fer title as truly as grant confers title. Each session are treated as conclusive proof of is a mode of acquiring ownership. But the some grant which is not proved, and in most potency of .possession as a means of acquir. cases cannot be proved, because it never ing title, when insufficient for that purpose, existed. Such a legal fiction does not alter cannot be used to effect the relevancy of one the substance of things. In every such case or more acts of ownership by the alleged the ownership is in reality acquired through grantee of a specified grant to the fact of possession, and is not acquired through a
the execution, contents, and validity of that grant. Possession as a mode of acquiring grant. In discussing the ownership of inproperty establishes ownership, when as an tangible property or incorporeal heredita, evidential fact it is wholly incompetent to ments, it is often necessary to use the words prove an ownership acquired by grant. It "grant," "presumption," "possession," with bappens in some cases that evidence is intro- differing meanings, indicated only by the duced tending to prove the existence of an context, and there is much excuse for the actual particular grant as well as evidence occasional confusion of things, related but tending to support the acquisition of owner. really independent; but there is far less ex. ship through possession. Such possibility bas cuse for any confusion of this nature in disnaturally led to some confusion between the cussing the ownership of land. Here the force of possession as a mode of acquiring distinction between the acquisition of ownownership and the evidential value of pos- ership through possession and its acquisition session merely as a fact which may or may through a conveyance from a former owner not become relevant or material in proving an to the present possessor is more clearly mark. actual and particular grant. The distinction, ed. Under the early English law, land, unhowever, is real and important. A. sues B. like property in intangible rights, was not for trespass in crossing his land. B. at the subject of prescription in any form. tempts to establish two defenses-one, own Twiss V. Baldwin, 9 Conn. 304; 2 Black. ership of a right of way, acquired through Comm. 261. Substantially the only mode user for time immemorial (now provable by by which ownership could be transferred adverse possession for 15 years, or its equiv
from one owner to another was some form alent, an indefinite and fictitious grant con of conveyance. Bare possession, the apparclusively presumed from a possession for time ent right of possession, and even the right immemorial); and the other, ownership of a of possession might be acquired without terright of way acquired through a grant from minating ownership of land once acquired A. to B., made 10 years before the bringing and not conveyed. This ownership might of suit. User or possession of a right of be asserted and established through the writ way for 14 years is proved. Some evidence of right, and then the lost possession be reis produced tending to prove a grant of the
covered. The limitation of the writ of right way claimed, etc., made by A. to B. 10 years to a definite period of 60 years (St. 32 Hen. before, and the loss of the deed. The court viii) to a limited extent, and the adaptation charges the jury, as bearing on the first de of the action of ejectment to the trial of title fense, that, if B. has proved the requisite with the limitation of the exercise of a right possession of a right of way for 15 years, of entry to a period of 20 years (St. 21 Jac. his ownership is established, but, if he has I) to a greater extent, rendered the practica)
acquisition of ownership by possession possible in many cases. After the passage of the statute of James I, cases might arise where the writ of right would be available to the true owner; but since the enactment of St. 3 & 4, Wm. iv, for limitations of actions relating to real property, possession for 20 years as a mode of acquiring ownership of land has been more clearly recognized, and has sometimes been termed an acquisition of ownership through legislative conveyance.
In this state, however, possession as a mode of acquiring ownership of land has been recognized from earliest days; the only other method being some form of convey. ance. The first settlers claimed to have acquired absolute ownership of lands within our limits mostly by purchase from the native Indians and partly by conquest, and their ownership in fact rested on these claims until the charter of 1662, which granted and confirmed to the charter government all land within its jurisdiction, to be holden of the king in free and common socage. Subsequently lands belonging to particular persons were held according to this tenure, but the land tenures of England were in no other way ever recognized as a force within our limits. The claims of ownership and purchase by conquest were never abandoned, and in 1793 our Legislature declared that by the establishment of our independence the citizens of this state became vested with an allodial ti. tle to their lands, and therefore it declared "that every proprietor in fee simple of lands has an absolute and direct dominion and property in the same.” In 1639, substantially coincident with the establishment of civil government, it was enacted that all land allotted to any particular person should be recorded. Such record, as well as the record of any subsequent sale, was compulsory, and sale without record was of no value. A certified copy of the record served the purpose of a deed. 1 Col. Rec. p. 37. In 1660 it was enacted that all future conveyances should be made by deed duly recorded, and the requisites to the validity of such deed were prescribed. 1 Col. Rec. p. 358. In 1667 it was enacted that any person then standing possessed of land and so continuing uninterrupted for the space of one year should be the owner thereof as ful. ly as if allotted to him, with the same right to enter it for record. 2 Col. Rec. p. 67. In 1684 it was enacted that any person who has had a right of entry or action in respect of land detained from him since 1667 until the 10th of the month following the passage of the act, and neglected to enforce such right, shall hereafter be utterly excluded and disenabled from such suit or entry. It was further enacted that no person having an existing right for action or entry for land detained could exercise the same unless within three years from the 10th of the following month, and that no subsequently accruing right of action or entry for land detained could be enforced unless within 15 years
from the accruing thereof. 3 Col. Rec. 146, 147. The substance of this last provision has since remained unchanged, and is found in section 1109 of the General Statutes of 1902. In 1727 it was provided that no valid conveyance of land could be made by any one ousted of' possession thereof except to the present possessor. 7 Col. Rec. 105. The operation of these laws, most of which are still retained substantially in the form of their original enactment, was to establish by legislative authority possession for 15 years as a distinct means and mode of acquiring ownership of land. One reason for this operation may be found in the wide difl'erences between the English law of real estate and our own.
In Bush v. Bradley, 4 Day, 306, Judge Reeve says: “We have always considered ownership as giving a right to possession of real property, as much so as ownership of personal property. Ownership in the one case draws after it the possession as much as in the other case, and whenever a right of possession is lost all title and ownership are lost. So the statute of limitations respecting lands has always been construed. The statute, in the words of it, does not take from the original proprietor his title; it only tolls his right of entry. And yet this statute has been always considered as barring all claim of title, whilst the same words in the English statute have been considered, noi as having any effect on the title, but only on the right of entry, and the lands may be recovered by a form of proceeding proper for such a case. The English law distinguishes betwixt a right of possession and a right of property, but our law does not. Wherever there is a right to real property, there is, of course, a right of possession, and the statute, which takes away the right of possession, takes away the right of property; and this is the reason that this statute has received a construction altogether different from the construction given to the English statute." The controlling reason is found in the fact that the legislation mentioned, extending from 1639 to 1684, must be regarded as one piece of work, whereby our system of acquiring ownership of land was developed and settled. Conveyance followed by record according to the forms prescribed for securing perpetual certainty is the normal mode of acquiring ownership. When these forms are neglected, or the owner abandons his land, occupancy or possession continued for 15 years is a distinct mode of conferring a new ownership on the person in occupation at the end of the term. Eels v. Day, 4 Conn. 95; Sherwood v. Barlow, 19 Conn. 471-477; Price v. Lyon, 14 Conn. 279-290; Wright v. Wright, 21 Conn. 329-345.
It follows (1) that in establishing a legal title to land acquired through adverse possession, evidence is directed to the nature and extent of the occupancy, to the existence of any statutory disabilities, and to the unbrok. en continuance of the occupancy for fifteen