ROBERT B. MARSHALL, RUTH N. MARSHALL vs. MRS. STANLEY SMITH, ELIZABETH HAENSCHEN, JOHN RILEY, MARY R. RILEY, MARGUERITE G. SMITH, NELSON C. SMITH, WILLIAM S. SMITH, JUNE C. GESMER, SHERMAN HOAR, HARRIET B. HOAR, CHARLES FORD CURRAN, MARGARET D. KNIGHT, JANE T. KNIGHT

Robert B. Marshall and Ruth N. Marshall of Edgartown in Dukes County have petitioned this Court pursuant to the provisions of G. L. c. 185, § 1 for the registration and confirmation of their title to land on Chappaquiddick Island in said Edgartown. Answers were filed on behalf of Margaret D. Knight and Jane T. Knight claiming the right to use that portion of the premises shown on the filed plan as "Meeting House Lot" and the way from Chappaquiddick Road to the "Lot" and their property, in common with others so entitled. These respondents did not pursue their claim and were defaulted in open court. Charles Ford Curran answered and objected to the allowance of the petition unless the decree was entered subject to his rights to maintain and use the overhead wires shown on said plan. A stipulation to this effect was filed at the conclusion of the trial. Sherman and Harriet B. Hoar also filed an objection to the allowance of the petition and claimed a right-of-way for passage and installation of utilities over a portion of the premises. A default was entered against them but a motion to remove it was filed seasonably. The motion is now allowed subject to their counse1 either moving within ten days after the entry of this decision for a trial on this limited issue or, alternatively, the filing of a stipulation by the petitioners and these respondents to dispose of their objections. The other respondents, Mrs. Stanley Smith, Elizabeth Haenschen, John Riley, Mary R. Riley, Marguerite G. Smith, Nelson C. Smith, William S. Smith and June C. Gesmer, all claim to have an undivided interest in the major portion of the premises based on the construction of the will of Charles S. Simpson, late of said Edgartown, Dukes Probate No. D4/1115, (Exhibit No.7; Abstract, sheets 21-25).

The petitioners acquired their title to the premises by two deeds from Charles S. Tickle, one dated September 8, 1949, recorded with Dukes County Registry of Deeds, [Note 1] Book 217, Page 30 (Abstract, sheet 32) [Note 2], and the other dated December 29, 1949 and recorded in Book 217, Page 240 (Abstract, sheet 33), and by a deed from Frederick R. Higgins and Katherine A. Higgins dated April 7, 1948 and recorded in Book 214, Page 293 (Abstract, sheet 18). The parcel described in the latter deed comprises the southwesterly corner of Indian Lot 18 shown on the filed plan. The petitioners' title to it is not disputed. The premises described in the 1949 deeds are the remainder of Indian Lot 18 (September conveyance) and Indian Lots 25 and 66 (December conveyance) shown on the filed plan.

Record title of the petitioners to the premises acquired from Tickle depends upon the construction of Mr. Simpson's will. If title thereto passed by virtue of Article FIFTH, to Ralph Tickle for life and thereafter to Charles S. Tickle, then record title is now in the petitioners. Conversely, if the premises were not specifically devised, title thereto fell into the residue. Under the latter construction the petitioners still would have a fractional of the residuary devisees under Article FIFTEENTH to whom a share was devised by Mr. Simpson. The respondents also claim under the same provision of the will.

There are three paragraphs in the decedent's will in which he made specific dispositions of his real estate. In Article SEVENTH he devised real estate on the east side of Cape Pogue Pond to his brother, Warren A. Simpson, who, under Article EIGHTH, also received real estate on Chappaquiddick Island bordering on Edgartown Harbor. The remaining Article of the will specifically devising real estate is Article FIFTH which reads:

"FIFTH I give to said Ralph Tickle, for his life, my real estate situated on the west side of Cape Pogue Pond, on the Island of Chappaquiddic (sic), in the Town of Edgartown, known as the "Mary Leighton Place", together with the furniture and furnishings therein, and the boats which are there at my decease; also all my real estate adjoining the same, all of which is known as "The Duck's Nest". Also my real estate known as "John Oliver's Point" on said Chappaquiddic (sic). After the death of the said Ralph Tickle I give said properties, known as the "Mary Leighton Place", "The Duck's Nest" and "The John Oliver's Point" to Charles S. Tickle, son of the said Ralph Tickle, in fee."

"John Oliver's Point" does not concern us; the "Mary Leighton Place" or "The Duck's Nest" does. The determination as to what the testator meant when he used these terms and how much land is encompassed thereby is not free from doubt. We must determine the intent of the testator as to the meaning of the "Mary Leighton Place" and "all my real estate adjoining the same, all of which is known as 'The Duck's Nest'" when he executed the will. As was said in Tucci v. DiGregorio, 358 Mass. 493 (1970) at page 495:

"The rule by which we are governed in this determination is aptly stated in Sewall v. Elder, 279 Mass. 473 , 476-77, as follows: 'The accepted rule for the interpretation of a will is to ascertain the intent of the maker as gathered from the testamentary language read in the light of the knowledge possessed by him and of the material circumstances attendant upon him at the time, attributing due weight to all the words used, not stressing provisions of doubtful meaning but searching for a general plan from a survey of the whole instrument, presumably designed to express a consistent and harmonious purpose, and then to give effect to that intent unless prevented by some rule of law.'"

The ambiguities in the will's phraseology make extrinsic evidence admissible.

"[O]ral testimony as to the meaning and purpose of a testator in using language must be rigidly excluded (citations omitted). It is only where testamentary language is not clear in its app1ication to facts that evidence may be introduced as to the circumstances under which the testator used that language in order to throw light upon its meaning." Mahoney v. Grainger, 283 Mass. 189 ,192 (1933); accord Best v. Berry, 189 Mass. 510 , 512 (1905). In Aldrich v. Gaskill, 64 Mass. 155 (1852), the court, in interpreting an ambiguous devise, laid down the following principal of law:

"In construing a devise, ... we are almost necessarily constrained to look beyond the will, to resort to evidence aliunde to ascertain what the description embraces. The will itself calls for, and requires such evidence, in order to apply such a description to the estate intended. It may be that when so applied, there may be only one dwelling-house, one warehouse, or mill or wharf, which will answer the description, and no ambiguity remains. But if the evidence still leaves it in doubt, what was intended, it is a latent-ambiguity, and then, by the established rules of law, evidence aliunde, including parol evidence, is admissible, showing the circumstances under which the estate was devised, how it was used, held, and occupied by the testator, the manner in which he was accustomed to regard it and speak of it. Id. at 156-57."

Mr. Marshall testified that he was unaware of any house in the vicinity called the "Mary Leighton Place" although he was familiar with a pond frequently called the "Mary Leighton Pond". Obviously it would be inartistic, not to say unusual, to refer to furniture and furnishings in a pond so there clearly is a latent ambiguity in the terms used by the testator and those of common usage in the neighborhood. It does appear, however, from the records in Registration Case Nos. 32925 and 35844, of which I take judicial notice, that Mr. Simpson's property on the west side of Cape Pogue Pond was generally known as "The Duck's Nest". The house in which he lived was situated thereon, and perhaps to him this was the Mary Leighton Place, while the real estate surrounding it was "The Duck's Nest". Title to this land was registered in Case No. 35844. It is not clear whether the present locus abutted the main Simpson parcel. Mr. Marshall testified that it did and outlined the Simpson holdings in ink on Exhibit No.6. No documentary evidence was introduced to support this assertion, however, nor did any Land Court Examiner so testify. Nonetheless, I hold that the portions of Indian Lot 18 (other than that acquired from Higgins) and all of Indian Lots 25 and 66, acquired by the petitioners from Tickle, were included in the devise set forth in Article FIFTH of the Simpson will.

This conclusion does the least violence to the intent of the testator. True, we do not know with certainty that the locus was land "adjoining", but the gap, if any, was not great. Yet, by saving the real estate from the residuary clause, we preserve the marketability of the title and the testator's pattern of specifically devising his real estate. Moreover, he devised the land on the east side of Cape Pogue Pond to his brother, Warren, and the land on the west side to the Tickles. It makes sense that these nearby lots were to go with the latter. It is apparent from reading the will that Charles S. Tickle was the focus of much of Mr. Simpson's bounty, a purpose which this result will serve. And, Mr. Tickle, who may well have been presumed to know the intention of his benefactor, construed the will as I have by selling the property to the petitioners.

On all the evidence I, therefore, find and rule that the pertinent parts of Indian Lots 18, 25 and 66 were included in the devise set forth in Article FIFTH of said will (Exhibit No. 7).

Even if a different conclusion were reached as to the construction of the will, the result of this case would be the same, for the petitioners have presented a strong case of adverse possession. As to this aspect of the case, on all the evidence I find and rule as follows: After the original parcel was conveyed to the petitioners in 1948, improvements commenced in the house thereon. The following year deeds to the parcels in dispute were obtained from Tickle. They were absolute in form rather than couched in terms of undivided fractional interests. We, therefore, have no question of the applicability of the doctrine relative to tenants in common. The Marshalls entered, not as tenants in common, but as sole owners under deeds purporting to convey the entire interest in the locus. The deeds were constructive notice to all the world, including the respondents. See Phipps v. Crowell, 224 Mass. 342 , 343 (1916). The entry was under color of title, Cummings v. Wyman, 10 Tyng 464, 468 (1813), so the petitioners have the benefit of that doctrine. Dow v. Dow, 243 Mass. 587 , 590 (1923). The petitioners have lived in the house continuously. Improvements, which commenced almost immediately after the acquisition of title, consisted of the installation of a driven well, a heating system, hot water, electricity, telephone, plumbing and an inside bathroom. Additions were made to the house from time-to-time so that the original small wooden-frame dwelling developed into a structure which included a new living room, a north wing two-story addition, and additions to the old kitchen and to the west side. The number of appurtenant buildings also increased as the male petitioner expanded his business of building residences. Over the years he constructed a plumbing supply shop, two woodworking shops, one with a paint shop, and storage shop for tools and machinery, a garage with grease pit, and a lumber shed. Many of these buildings were located on the Higgins parcel as to which there is no title question, but portions of some of the buildings extended onto the Tickle pieces as did the activities generated by the availability of these facilities. On the Tickle lots, the petitioners also constructed a gazebo called the "Lookout", two corrugated iron sheds, and three ponds to attract wild life. There is an existing storage area for building materials on part of Lot 18 which was started about 1950. The stock has been piled about six to eight feet high. The masts from the Manxman (see Norton v. West, Confirmation Case No. 38774) were deposited here.

Additional activities of the petitioners included brush cutting trails and paths, occasionally planting crops, cultivating two vegetable gardens, planting fruit trees and posting the property nearly every year in several strategic locations.

This evidence of adverse possession was uncontradicted, and I find the foregoing as facts. Save for an attempt for environmental reasons to preserve part of the land in its natural state, I find that the locus is not "wild land" as that term is used in litigation in the field of adverse possession. Two boundaries of the premises are public ways, and the other lines are established by monuments at the corners thereof, old fence lines, plowed and built up ridges, natural phenomena such as a gully, and a barbed wire fence erected by Mr. Marshall. To the extent that the premises might be considered wild land there has been sufficient enclosure, actual occupancy and acts of sufficient notoriety to overcome any difficulties with acquiring title prescriptively. The test of what must be shown to do so hardly needs to be restated. McDonough v. Everett, 237 Mass. 378 (1921), framed the requirements of adverse use as follows:

"Title to land claimed to have been acquired by an adverse possession continued for a statutory period of limitation rests upon a seisin of that land, an actual physical possession of it under a continuous claim of title or right, which is known to the real owner, or is so open, notorious, continuous and visible as to warrant the inference that the owner must, or should have known of the claim of the possessor."

Id. at 383-84; see Ryan v. Stavros, 348 Mass. 251 , 262 (1964); Kershaw v. Zecchini, 342 Mass. 318 , 320 (1961); Ottavia v. Savarese, 338 Mass. 330 , 333 (1959); Attorney General v. Ellis, 198 Mass. 91 , 97-98 (1908).

On all the evidence I find and rule that the petitioners have borne their burden of proving each element of adverse use of the land other than that shown as Indian Lot 66 on the filed plan. There was no evidence introduced as to use of this portion of the locus. However, it is contiguous to that part of Indian Lot 25 claimed by the petitioners, and under the doctrine of color of title the petitioners should be given the benefit of constructive possession thereof. See Dow v. Dow, 243 Mass. 587 , 590 (1923).

On all the evidence I find and rule that the petitioners have good record title to that portion of the premises acquired from Frederick R. Higgins et ux by deed dated April 7, 1948 and recorded in Book 214, Page 293; that the devise in Article FIFTH of the will of Charles S. Simpson included the remainder of Indian Lot 18, the northerly portion of Indian Lot 25 and Indian Lot 66; that the petitioners also have established title by adverse possession to the latter three parcels; that a decree may be entered registering the petitioners' title to the premises shown on the filed plan subject to such matters as are not in issue here, to the pending motion by the respondents Hoar, and to the submission by the petitioners to the Court of evidence as to the nature of the "Old Meeting House Lot" shown on the plan.

Decree accordingly.