Belding v. Smythe
| Decision Date | 27 February 1885 |
| Parties | M. J. Belding v. George A. Smythe |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Argued September 23, 1884.
Hampden.
Bill in equity to compel the delivery to the plaintiff, for cancellation, of two instruments in writing executed by her on the ground that they constituted an agreement between the plaintiff and the defendant, which was void for champerty and maintenance, and could not be upheld in equity.
The first instrument, dated August 16, 1883, recited that the defendant, a counsellor at law, had discovered that one William Hale had died intestate, leaving an estate to be administered upon, which was then in the hands of one Schouler, a public administrator for the county of Suffolk that the defendant had been at great labor and expense to find the next of kin of Hale; that the plaintiff was wholly ignorant of the death of Hale, or of his leaving, or having when living, any estate whatever, and except for the labor and efforts of the defendant would never have received any part of said estate, but the same would have escheated to the Commonwealth. The instrument then conveyed from the plaintiff to the defendant one undivided half part of all the moneys, goods, chattels, and property, of every kind and nature whatsoever, to which she was entitled, or in which she had any interest coming to her, from the said Hale's estate. It also contained this clause: "It is expressly understood, however, that I, the said Mamie Jane Belding, am to be kept and saved harmless by the said George A. Smythe for all costs and charges heretofore or hereafter in any way or manner, unless the said Smythe is successful in establishing my said claim and securing said estate."
The second instrument, executed on the same day, was a power of attorney from the plaintiff to the defendant, authorizing him to petition the Probate Court within and for the county of Suffolk, and do all things necessary in obtaining a decree in behalf of the plaintiff as next of kin of William Hale. It also contained this clause: "And I hereby agree to and with my said attorney, that, after deducting all cash expenses in searching for me and procuring said decree, and collecting the same, he shall be entitled to retain fifty per cent of the balance of whatever sum shall be recovered from said William Hale's estate for his services heretofore rendered and to be rendered herein."
At the hearing, before W. Allen, J., the plaintiff contended that the two instruments constituted an agreement which was unlawful and void for champerty and maintenance; and that, for that reason, she was entitled to the relief sought. The judge reserved this question for the consideration of the full court; the bill to be dismissed, unless a decree should be entered for the plaintiff for that cause.
Decree for the plaintiff.
W. G. Bassett, for the plaintiff.
H. E. Fales, for the defendant.
OPINION
The two agreements, taken together, purport to assign to the defendant one half of the interest of the plaintiff in the estate of William Hale, and to authorize the...
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