Dodd v. Winship

Decision Date09 May 1887
Citation11 N.E. 588,144 Mass. 461
PartiesDODD and another v. WINSHIP, Guardian.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

Sohier &amp Welch, for appellants.

We contend that each child took a vested remainder in fee at his father's death, and the words "at her decease" merely show when the trustees are to convey and assign the property to the children; in other words, when the remainder shall take effect in possession. The words "and assigns" strengthen this view. "The issue of any deceased child to stand in their parent's stead, and receive their parent's share," refers to a child who should decease during testator's life-time, and whose issue would be entitled to their parent's share. Of course, if vested, any child in whom it was vested could use and dispose of it during his life-time if he saw fit. Hill v. Bacon, 106 Mass. 578; Darling v Blanchard, 109 Mass. 176; Kimball v. Tilton, 118 Mass. 311; Pike v. Stephenson, 99 Mass. 188; Moore v. Lyons, 25 Wend. 119, 126, 127; 4 Kent Comm. (12 Ed. by Holmes) note a; Livingston v Greene, 52 N.Y. 118; Minot v. Tappan, 122 Mass 535.

Assuming, as we must, for the purpose of this case, that Dwight B. Hooper took a portion of "the principal belonging to the estate," namely, an amount received by him from the Saco Water-Power Company, when the company was dissolved, and applied it to his own use, his share is accountable for it, and it is proper, he having deceased, to deduct it from what his children receive on the life-tenant's death. If he had a right to dispose of and alienate it during his mother's life, he would certainly have been bound on her death, if he had survived her, to allow for the principal of the fund which he had taken, no matter how he had disposed of it; and if he died before his mother, as was the case, his children were in no different position from what he would have been in had he survived.

These points being sustained, we contend that it makes no difference that at a former hearing a different state of facts appeared, and a decision was rendered upon those facts. The question is whether a mistake in an account can be corrected when the account has been acted upon by the supreme court of probate, or whether the mistake binds the parties, or what is the proper mode of correcting such a mistake. It must be allowed that, if the mistake cannot be corrected by the court sitting as a probate court, it cannot be corrected at all. See Pub.St. c. 156, § 6. No adjudication has been had upon the question now before the court, but a decision has been made upon an entirely different matter. If an adjudication had been made upon this present claim, and it had been disallowed by the court of final resort, that adjudication would have ended the matter. But the accountants are in the same position as if they had rendered an account charging entirely a new item which had been omitted by mistake. That such a mistake, such an omission, may be corrected at any time before a final settlement, is shown by the following cases and authorities: Pub.St. c. 144, § 9; Blake v. Pegram, 101 Mass. 592, and 109 Mass. 541; Davis v. Cowdin, 20 Pick. 510; Stetson v. Bass, 9 Pick. 27.

W.E. Russell, for appellee.

The evidence tending to show that the money was principal was incompetent. It sought to impeach and contradict a fact that had been found by the court, and to litigate again a cause that had been decided. At the former trial, "it appeared, and the court found, that, during the life-time of the widow, said Dwight B. Hooper collected at sundry times certain rents or other income." Upon this fact the supreme court based its decision. Dodd v. Winship, 133 Mass. 359. The fact so determined was res adjudicata, and could not afterwards be reopened between the same persons. Cummings v. Cummings, 123 Mass. 270. The judgment of courts must be based on the facts as they are presented. No doubt, if the truth could always be fully and accurately known, many decisions would appear erroneous, but it is for the public interest that there should be an end to litigation; and parties and privies who have had their day in court cannot, by mere proof or offer of proof that the judgment was founded on error in fact, renew the controversy. Chamberlain v. Preble, 11 Allen, 370, 375; Railroad Corp. v. Sparhawk, 1 Allen, 448. See Blair v. Bartlett, 75 N.Y. 150, 153; Gates v. Preston, 41 N.Y. 113; Bellinger v. Craigue, 31 Barb. 534; Dunham v. Bower, 77 N.Y. 76; Foster v. The Richard Busteed, 100 Mass. 409, 412. An error in the report of facts, whether the facts are found or agreed, cannot be corrected by subsequent litigation between the parties. Chamberlain v. Preble, 11 Allen, 370. If the merits have been tried, and the entire cause determined, the decision is a final judgment, no matter what may be its technical designation. Commissioners v. Lucas, 93 U.S. 108. If the evidence offered is competent, then the former trial in this court was merely upon a moot question. The parties have been put to great delay and expense without result; and may be put to endless litigation. It certainly seems a dangerous principle to establish that a party may retry his case if he can prove that he blundered in his first trial; or that, after decision by the full bench, he may show in a new proceeding that the court was mistaken in the finding of a fact. Baylies v. Davis, 1 Pick. 206; Pub.St. c. 144, § 9.

The evidence was immaterial. Assuming the money appropriated by Dwight B. Hooper to have been principal, it is submitted that it cannot be charged against his children. The children of the testator, it is admitted, under the will, took vested remainders, capable of alienation. Whether an alienation would be subject to the contingent interest of the grandchildren, as in Gardner v. Hooper, 3 Gray, 398; Blanchard v. Blanchard, 1 Allen, 223, 228; Smither v. Willock, 9 Ves. 233,--or would pass the estate clear of such contingent interest, as in Hill v. Bacon, 106 Mass. 578,--does not arise. It is admitted that the direction to the trustees to pay, on the death of the widow, the remainder to the children and their assigns, made the interest of the grandchildren subject to an alienation by their father. In the absence of such alienation, the death of their father before the life-tenant diverted his interest in favor of his children,--substituted legatees. The interest of the father was a vested remainder, "so far contingent that, if he should not survive the widow, the amount would not come to him;" but yet "descendible, transmissible, and assignable," (SHAW, C.J., in Gardner v. Hooper, supra,) giving him no seizin or right to immediate seizin of the real estate sufficient to raise a dower interest, (Wilmarth v. Bridges, 113 Mass. 407,) and no right to immediate payment of his share of the personal estate. His power to alienate and bar contingent interests gives no right to a prepayment, against the declared intent of the testator. Whittaker v. Whittaker, 99 Mass. 364; Pike v. Stephenson, Id. 188, 190. It is therefore submitted that such payment was wrongful, and should not affect subsequent interests in the will. Substituted legatees should not be charged with it.

The principle that a devise to heirs of the same estate in nature and quality as that to which they would be entitled by descent is void, does not apply. Ellis v. Page, 7 Cush. 161. The exact interest taken by the grandchildren under a provision like this in a will has been the subject of conflicting decisions. Gardner v. Hooper, 3 Gray, 398; Blanchard v. Blanchard, 1 Allen, 223; Smither v. Willock, 9 Ves. 233; Hunt v Hall, 37 Me. 363; Moore v. Lyons, 25 Wend. 119, 144; Hill v. Bacon, 106 Mass. 578; Kimball v, Tilton, 118 Mass. 311; McArthur v. Scott, 113 U.S. 340, 381, 5 S.Ct. 652. In more recent decisions, which have held that such a provision gives the children a vested remainder capable of alienation, the court has refused to say that the remainder was not liable to be divested, and has not overruled or criticised the earlier decisions cited. Kimball v. Tilton, supra; Hill v. Bacon, supra; Pike v. Stephenson, 99 Mass. 188; Gibbens v. Gibbens, 140 Mass. 105, 3 N.E. 1. Had their father survived the life-tenant, his children would have taken, if at all, as his heirs. It is not inconsistent with the vesting of an estate at the testator's death that it should not receive its final character till the happening of some subsequent contingency; e.g., it may open to let in other subjects, and so to substitute an object. Ballard v. Ballard, 18 Pick. 41; Dingley v. Dingley, 5 Mass. 535; Doe v. Moore, 14 East, 601; 2 Jarm. Wills, (Bigelow's Ed.) § 156. If the grandchildren take as legatees, what part of the testator's estate do they take? There cannot be deducted from a legatee's share of an estate an amount wrongfully appropriated by a prior holder of the share. The substituted legatees do not succeed to his debt. Cowdin v. Perry, 11 Pick. 503. The wrongful appropriation was a loss to the trust-estate which should be borne equally by all the beneficiaries. Jeffs v. Wood, 2 P. Wms. 128; Wat. Set-Off, (2d Ed.) § 209. See DUVALL, J., in Carson v. Carson, 1 Metc. (Ky.) 300; Carr v. Taylor, 10 Ves. 574; Fink v. Hake, 6 Watts, 131; Harrison v. Andrews, 13 Sim. 595. In the case at bar, the debt is the debt of Hooper, and is still a claim against his administrator, but no claim against his children. As a debt it cannot be set off against them; nor can it as an equity attaching to their share. See Thatcher v. Cannon, 6 Bush, 541; Pierce v. Dustin, 24 N.H. 417; Skinner v. Wynne, 2 Jones, Eq. 41; Voorhees v. Voorhees, 18 N.J.Eq. 223. If the appropriation of their father can be charged against the children, any debt of his to the estate can be also. The trustees could, therefore,...

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  • Dodd v. Winship
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 9 mai 1887
    ...144 Mass. 46111 N.E. 588DODD and anotherv.WINSHIP, Guardian.Supreme Judicial Court of Massachusetts, Suffolk.May 9, This was an appeal from a decree of the probate court of the county of Suffolk, disallowing two items charged in a supplemental account of the appellants. The case was heard i......

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