Cunningham v. Blake

• Decision Date: 22 November 1876
• Citation: 121 Mass. 333
• Parties: Catherine H. Cunningham v. Samuel P. Blake, Jr
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

121 Mass. 333

Catherine H. Cunningham v. Samuel P. Blake, Jr

Supreme Court of Massachusetts

November 22, 1876

[Syllabus Material]

Suffolk. Bill in equity, filed September 11, 1876, for specific performance of the following agreement, signed by the plaintiff and defendant: "I, S. P. Blake, Jr., agree to lend Catherine H. Cunningham eight thousand dollars for three years at six and one half per cent., on her note secured by mortgage of the house in which she resides in Dorchester, with about one hundred and twenty-five thousand feet of land. [Here followed a description of the land by metes and bounds.] And I, Catherine H. Cunningham, agree to borrow said sum within two weeks herefrom, and to give said mortgage conveying a clear title to secure the same."

The bill alleged a tender of the note and mortgage, duly executed, to the defendant, and a refusal by him to accept the same on the pretence that the plaintiff had only a life estate in the land described in the agreement, or a fee subject to a trust to devise the same to her children.

The bill also alleged that the mortgage would give the defendant a good title free from all incumbrance or trust, for the premises, described in the agreement and mortgage, are a part of the estate devised to the plaintiff by her late husband James Cunningham, who died in August, 1872, leaving a will dated August 10, 1870, duly admitted to probate, and in the following words: "That my whole estate, real and personal, I hereby devise and bequeath to my wife Catherine, in her own name and for her own purposes, with only this condition: That on the marriage of my daughter Catherine to William Gray Jr., I gave her by deed through him two acres of land considered as good as any I had, and that I wish at the death of my wife Catherine that she should make an equal division of her estate to such children as shall survive her or their representatives, and out of the portion that shall come to Catherine to deduct the value of two acres at as high a valuation as any there is, and to let the amount be absorbed in the whole amount to be divided, and to place all the parts in trust for them as many as there shall be; this, of course, is not to interfere with that part of her estate already in trust."

That the plaintiff's husband left five children by their marriage, all then beyond their majority: three daughters the eldest two of whom are married, and two sons, both unmarried all of whom still survive; that his estate consisted of about five thousand dollars in notes and mortgages, two thousand dollars' worth of household effects, a house in Chelsea of the value of thirty-six hundred dollars, and about nineteen acres of land in Boston close to the thickly peopled part thereof, on...