Martin v. Smith

• Decision Date: 08 February 1878
• Citation: 124 Mass. 111
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Margaret Martin v. James Smith & another

124 Mass. 111

Margaret Martin v. James Smith & another

Supreme Court of Massachusetts

February 8, 1878

Middlesex. Writ of entry, dated November 22, 1876, against James Smith and James Martin, to recover a parcel of land in Lowell. The case was submitted to the Superior Court, and after judgment for the tenants, to this court, on appeal, on agreed facts in substance as follows:

Bartholomew Garrity was seised in fee of two lots of land in Lowell, one on the north side of North Street, which was occupied by buildings, and the other a vacant lot, called the "garden lot," on the south side of the same street. On July 3, 1854, he mortgaged the latter lot to his son, John Garrity, to secure the payment of a promissory note, on three years' time, for $ 937.34; and this mortgage was duly recorded. On July 2, 1860, John, not having taken possession under the mortgage, died, leaving a will, in which his father was appointed executor, and containing the following clauses:

"Fourth. Upon the decease of my said executor, I hereby give and bequeath to my nephews, James Smith, minor son of my late sister Ellen, and to James Martin, minor son of my late sister Ann, all right, title, interest and estate that I have as mortgagee, in and to a certain parcel of land on North Street in said Lowell, known as the garden, to hold to them share and share alike; during the lifetime of my said executor, I give said mortgage interest to him in trust for my said nephews.

"Fifth. All the rest, residue, and remainder of my estate, I give to my said executor in trust, for my said nephews, to hold and invest the same in some lawful manner for their benefit, and to be paid to them share and share alike upon the decease of said executor, or upon their or either of them respectively arriving at the age of twenty-one years."

Bartholomew Garrity was duly qualified as executor of his son's will and on September 10, 1861, filed his first and final account in the Probate Court, in which he charged himself with the amount of the mortgage note as assets in his hands.

On December 13, 1868, Bartholomew died, and, by the third clause of his will, gave to his daughter, the demandant, "all the real estate I may die possessed of, to her and her heirs and assigns forever, which property is situate on the north side of North Street in said Lowell."

The tenants, who are grandchildren and two of the heirs at law of Bartholomew, on July 12, 1873, made an entry on the demanded premises, for the purpose of foreclosing the mortgage given by Bartholomew to John, claiming to be owners of the note and mortgage under the will of John; and a certificate of this entry was duly recorded. Since the entry,...