Chever v. Ching Hong Poy

McFarland, J. This action was brought against certain Chinese tenants to recover rent for certain land, and against William J. Chever, who claims a certain interest in the land and rent, and who was made a defendant because he refused to join as plaintiff. The Chinese defendants paid the rent due into court; and the only matter in controversy is the right to a certain one fifth of the rent which is claimed by both plaintiff and defendant William J. Chever. The court first decided the issue in favor of said defendant, but afterward granted a new trial; and from the order granting the new trial the said defendant William J. Chever appeals. The plaintiff Edward E. Chever sues in his own right, and also as administrator of his deceased mother, Lydia D. Chever; and it is in his capacity as such administrator that he claims the said one fifth of the rent.

[70]The facts are, that James W. Chever, who was the father of plaintiff and defendant, died seised of the land in question in the year 1857. He left surviving him bis widow, Lydia D. Chever, and five sons, viz.: Edward E. (the plaintiff), David A, George F., Charles G., and the defendant William J. Chever. He left a will, in which he devised all his property to his widow, Lydia D., during her widowhood, with a proviso that if she should marry again it should immediately go to his said children in equal proportions. As she did not marry, the effect of the will was simply to give her a life estate in the property, without further disposition of it, leaving it to go, after her life, according to the law of descents.

Afterward, on May 10, 1860, but before the settlement of the estate of the deceased father, the defendant herein, William J. Chever, duly executed to his mother, the said Lydia D., a deed in which he did “give, grant, sell, devise, release, and forever quitclaim,” to said Lydia D., “ all his right, title, and interest in and to ail the real property .... which might be coming to the said William J. Chever, as heir at law of said James W. Chever, deceased”; and further covenanted to warrant and defend the same to said Lydia D., her heirs and assigns, forever, etc. His interest at that time was one fifth. Afterward, and prior to April, 1878, the said brother George F. Chever died unmarried, without issue, and intestate.

On April 8, 1878, on the petition of the administrator of the said father, James W. Chever, a decree was entered in the probate court distributing the land described in the complaint to the said widow, Lydia D. Chever, during her widowhood, and afterward in equal proportions to the surviving sons, Edward E. (plaintiff herein), David A., Charles G., and the defendant William J. Chever. Afterward, — on. January 15, 1883, — Lydia D. died, and plaintiff is her administrator.