Judkins v. Hyannis Pub. Library Ass'n

• Decision Date: 01 March 1939
• Parties: JUDKINS v. HYANNIS PUBLIC LIBRARY ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

302 Mass. 425

19 N.E.2d 727

JUDKINS

v.HYANNIS PUBLIC LIBRARY ASS'N.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1939.

Action of contract by Lillian E. Judkins, executrix of the residuary legatee under the will of Edward L. Eagleston, deceased, against the Hyannis Public Library Association, to recover from the defendant the amount bequeathed to the defendant by Edward L. Eagleston. From an order sustaining the defendant's demurrer, the plaintiff appeals.

Order affirmed; judgment for defendant.Appeal from Superior Court, Suffolk County; Hanify, Judge.

P. M. Swift and D. J. Fern, both of Hyannis, for appellant.

J. M. Swift, of Boston, for appellees.

DOLAN, Justice.

This is an action of contract in which the plaintiff, as she is executrix of the will of the residuary legatee under the will of Edward L. Eagleston, late of Barnstable, deceased, seeks to recover from the defendant $8,000 bequeathed to the defendant by Edward L. Eagleston in his will, which was allowed on September 20, 1913. He will hereinafter be referred to as the testator.

The declaration is in three counts. The material allegations of the first and second counts may be summarized as follows: Under the tenth paragraph of his will the testator made the following bequest: ‘To the Hyannis Free Public Library Association I give and bequeath the sum of eight thousand dollars * * * for the purchase of a lot of land and the erection of a Library Building in the village of Hyannis upon the express condition that the Library Building so erected shall be called and designated the Eagleston Library. While the Trustees of said Library Association may in their discretion use a portion of said bequest in the purchase of a lot of land in said Hyannis as a site for said Library Building, it is my earnest wish and request that, if possible, the said bequest may be used entirely and exclusively in the erection of said Library Building.’ The residuary clause of the will reads thus: ‘I devise and bequeath all the rest and residue of my goods and estate, real and personal, of whatever nature and description, wherever located and situated of which I shall die seized and possessed to my brother, Allen P. Eagleston and his heirs, absolutely and in fee simple.’

The residuary legatee is now deceased and the plaintiff is executrix of his will. In accordance with the tenth paragraph of the testator's will, the executors thereunder paid to the defendant $8,000 on or about January 6, 1915. The defendant ‘has neither purchased a lot of land nor erected a library building in the village of Hyannis which is designated as the Eagleston Library, as required by said bequest of said Edward L. Eagleston, although it has had a reasonable time to do so.’

The third count was a common count for money had and received by the defendant to the plaintiff's use.

The judge sustained the demurrer filed by the defendant on five of the grounds stated, to the effect that the plaintiff has no standing to bring her action against the defendant ‘in the matters set forth in her declaration,’ and that the matters contained in the several counts of the declaration are insufficient in law to enable the plaintiff to maintain the action, and do not set out a legal cause of action. In the order sustaining the demurrer the judge stated that count 3 was a common count and that no bill of particulars was filed with the writ when entered. See G.L.(Ter.Ed.) c. 231, §...