Noyes v. Noyes
| Decision Date | 22 May 1919 |
| Citation | 123 N.E. 395,233 Mass. 55 |
| Parties | NOYES v. NOYES. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Case Reserved from Supreme Judicial Court, Essex County.
Suit by James A. Noyes, as surviving executor of the last will and testament of James Noyes, also as devisee under the will, against Elbridge Noyes, resulting in interlocutory decree overruling demurrer to the bill, defendant appealing, and reservation of the case for the determination of the Supreme Judicial Court. Decree ordered affirming the interlocutory decree and enjoining defendant.
Boyd B. Jones, of Boston, and Ernest Foss, of Newburyport, for plaintiff.
Robert E. Burke, Arthur Withington, and Edward E. Crawshaw, all of Newburyport, for defendant.
This suit in equity is brought by the plaintiff, both as surviving executor of the will of James Noyes and as devisee under that will in his personal right, to enjoin the defendant from further prosecuting an action at law upon a written agreement executed by the testator. A demurrer to the bill was overruled. Then the case was sent to a master, who has filed an elaborate report, and it comes before us on a reservation for determination upon the pleadings, demurrer and the master's report. The relevant facts are these: James Noyes died in January, 1913, leaving real estate of the value of $10,935 and personal estate of the value of $12,921.44, aggregating $23,856.44. By his will executed in July, 1903, and admitted to probate on April 21, 1913, he made specific devises and bequests, which, together with the values of the several properties at the time of the testator's death so far as now pertinent are these:
To the defendant he gave:
‘The Jerry field $600, the Ilsley field $650, the barn lot $200, the Smith lot $250, 1/2 Bradley meadow $75, 1/2 Highfield pasture $500, 1/2 Knight pastrue $300, 1/2 stock, farm implements, carts and wagons $1,287.50, total $3,862.50.’
To the plaintiff he gave:
‘The homestead $6,168.46, the Cook lot $60, the Pettingell meadow $60, the Newhall lot $300, 1/2 Highfield pasture $500, 1/2 Knight pasture $300, 1/2 Bradley meadow $75, 1/2 stock, farm implements, carts and wagons $1,287.50, total $8,750.96.’
The clause of the will whereby the stock, farm implements, carts and wagons were given in equal shares to the plaintiff and the defendant contained these words:
The will was read on the day of the funeral in the presence of most of the heirs at law, including the defendant. He expressed no dissatisfaction with it. Shortly after the allowance of the will he took possession of the property by it devised and bequeathed to him and proceeded for several months to occupy and manage the farm jointly with the plaintiff pursuant to the desire of the father expressed in his will. It was the defendant's intention at this time to try to get on with his brother, the plaintiff, and to carry out the terms of the will of his father. In November, 1913, the brothers separated and the live stock, farming tools and crops were divided between them and they ceased to carry on the farm together. Since then the defendant has retained possession of the real and personal property given him by the will and used it as his own. In April, 1914, the defendant wrote to the executors a letter in which he made claim to $300 per year for services for nineteen years and for the first time referred to an agreement whereby his father had promised him the homestead. He had not then found the written agreement, but in July, 1914, he brought the action at law (sought by the suit at bar to be enjoined) to recover damages arising from the breach by his father of an agreement in writing of the tenor following:
Of the property described in this agreement, the will made specific disposition of the homestead wholly to the plaintiff, and divided the Knight pasture, the Highfield pasture and the stock, farm implements, carts and wagons equally between the plaintiff and the defendant. The defendant's action at law on the agreement ultimately resulted in a verdict in his favor. See Noyes v. Noyes, 224 Mass. 125, 112 N. E. 850.
The provisions of the will for the defendant and the terms of his contract with the testator present a case for the application of the doctrine of election. That doctrine is well established in Massachusetts. It was stated by Chief Justice Shaw in Hyde v. Baldwin, 17 Pick. 303, at page 308, in these words:
‘If any person shall take any beneficial interest under a will, he shall be held thereby to confirm and ratify every other part of the will, or in other words, a man shall not take any beneficial interest under a will, and at the same time set up any right or claim of his own, even if otherwise legal and well founded, which shall defeat, or in any way prevent the full effect and operation of every part of the will.’ Watson v. Watson, 128 Mass. 152;Smith v. Wells, 134 Mass. 11;Tyler v. Wheeler, 160 Mass. 206, 209, 35 N. E. 666.
The rule of election has been expressed in various phrases with reference to different states of facts. It was said by Lord Chancellor Cairns in Codrington v. Codrington, L. R. 7 H. L. 854, 861:
‘By the well-settled doctrine which is termed in the Scotch law the doctrine of ‘approbate’ and ‘reprobate’ and in our courts more commonly the doctrine of ‘election,’ where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time conforming to all its provisions and renouncing every right inconsistent with them.'
‘The general rule is that a person cannot accept and reject the same instrument and this is the foundation of the law of election.’ Birmingham v. Kirwan, 2 Sch. & Lef. 444, 449.
It was stated by Lord Hatherley in Cooper v. Cooper, L. R. 7 H. L. 53, 70, as follows:
‘The main principle was never disputed, that there is an obligation on him who takes a benefit under a will or other instrument to give full effect to that instrument under which he takes a benefit; and if it be found that that instrument purports to deal with something which it was beyond the power of the donor or settlor to dispose of, but to which effect can be given by the concurrence of him who receives a benefit under the same instrument, the law will impose on him who takes the benefit the obligation of carrying the instrument into full and complete force and effect.’
[1] The defendant accepted devises of at least four parcels of land under the will which were not included or mentioned in his contract and entered into possession of them and has continued to hold them. Their total value was $1,700. He also has continued in possession of other property given him by the will of a value of over $2,100. The contract between the defendant and his father the testator was of such a nature that specific performance of its provisions could have been decreed if the former had sought that remedy and had prevailed on the facts. That contract related to real property and specified personal property, which of course could not have been bought in the general market. Butterick Publishing Co. v. Fisher, 203 Mass. 122, 130, 89 N. E. 189,133 Am. St. Rep. 283. Contracts as to the disposition of one's property after...
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