Cogswell v. Hall
| Decision Date | 07 April 1904 |
| Citation | 70 N.E. 461,185 Mass. 455 |
| Parties | COGSWELL v. HALL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Everett C. Bumpus, Frank
E. H. Gary, and John B. Sullivan, Jr., for plaintiff.
Marcellus Coggan and George L. Dillaway, for defendant.
On the death of his father, the plaintiff, who appears to have been his only heir at law, entered into an agreement with his mother, of whose will the defendant is executor, by which she received the sum of $6,000, being the price of certain real estate left by his father, who died intestate, and subject to her right of dower. The details of the transaction are not fully disclosed, but from the testimony of the plaintiff it may be inferred that of this sum she was to have the income of $2,000 during her life, in place of her life interest in the land, and at her death the principal was to be paid to him. The remainder of the money she retained as a loan from him, on which she was to pay interest; but neither the time when the debt became due and payable nor the rate of interest to be charged appears in the bill of exceptions, and the only witness to the alleged contract was the plaintiff. As the original declaration did not contain a count declaring specifically for the money that represented the value of her estate in dower held by her at her death, an amendment was offered and allowed, in which this part of the plaintiff's claim was set out in a separate count. The defendant apparently opposed the allowance of this amendment upon the ground that it 'introduced a new cause of action that would otherwise be barred by the statute limiting actions against executors to two years after their appointment,' though there is no statement in the bill of exceptions giving the date of the appointment of the executor, or that he had given the notice required by statute (Rev. Laws, c. 139, § 1; Id. c. 141, § 9). Instead of this being a conclusive reason in favor of its disallowance, it might well be considered a sufficient cause for its being granted, for otherwise the plaintiff might lose a meritorious claim.
The other objection--that the conditions stated at the beginning of the trial had not arisen under which the amendment should be allowed--was wholly within the discretion of the presiding justice, as well as the further question of fact, raised by the defendant, whether the plaintiff, when he brought his action, intended to include the substance of the amended count as a part of his demand. Such an objection becomes of slight importance when it appears that the first count of the declaration included all the items for the full amount as money had and received to the plaintiff use. But the principal held by her as a substitute for her dower was not received to his use, and under the agreement made with him he would become entitled to its possession as his separate property only at her death. Driscoll v. Holt, 170 Mass. 262, 49 N.E. 309; Adams v. Weeks, 174 Mass 45, 46, 54 N.E. 350; Golding v. Brennan, 183 Mass 286-289, 67 N.E. 239. To meet this difficulty, and enable the plaintiff to maintain his action for the cause for which it was brought, the amendment was allowed properly.
The remaining exception relates to the exclusion of evidence offered by the defendant that his testatrix originally contributed $3,000 towards the purchase of the land, and had the right to appropriate to her own use upon receipt of the price for which it sold, so much as would repay her this amount. The plaintiff's case rested upon his testimony of an express agreement with his mother. He took the position that, as heir at law of his father, he became entitled at the time of sale to two-thirds of the money received by her, and at her death to the remainder. It was open to the defendant to prove that...
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