Robinson v. Cogswell

• Decision Date: 17 May 1906
• Citation: 78 N.E. 389,192 Mass. 79
• Parties: ROBINSON v. COGSWELL et al. COGSWELL v. HALL et al. BURRAGE v. COGSWELL et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

192 Mass. 79

78 N.E. 389

ROBINSON

v.COGSWELL et al.

COGSWELL

v.HALL et al.

BURRAGE

v.COGSWELL et al.

Supreme Judicial Court of Massachusetts, Norfolk.

May 17, 1906.

Cases Reserved from Supreme Judicial Court, Norfolk County.

Consolidated suits by Helen R. Robinson against Chas. F. Cogswell and others, by said Cogswell against Newbert J. Hall and others, by one Burrage against said Cogswell and others for the construction of the will of Hannah E. Cogswell, deceased. Cases reserved for full court.Wm. M. Robinson and Harry E. Perkins, for Helen R. Robinson.

Hiram P. Harriman, for Newbert J. Hall.

E. C. Bumpus, F. E. H. Gary, and J. B. Sullivan, Jr., for Chas. F. Cogswell.

KNOWLTON, C. J.

These three suits in equity were consolidated and heard together before a single justice, and reserved for the consideration of the full court. The last of them, which we will consider first, is a bill by an administrator de bonis non with the will annexed of Hannah E. Cogswell, late of Brookline, deceased, asking for instructions in the settlement of her estate. It is necessary to sell real estate to pay debts and charges of administration, and the first question is whether the legacy to Helen R. Robinson, the sister of the testatrix, of ‘all moneys or estate that may be recovered in the action of law * * * against one Francis Fisher Robinson, and one Charles C. Morgan named as trustee in said action,’ which moneys amount to $984.60, collected by the plaintiff as the proceeds of the judgment obtained in the action, is to be paid in full to the legatee or to be diminished by way of contribution for the payment of debts.

We are of opinion that this was intended by the testatrix to be a specific legacy, and therefore not subject to be diminished by way of contribution so long as there is property devised generally sufficient for the payment of the debts. Rev. Laws, c. 135, §§ 26, 27; Blaney v. Blaney, 1 Cush. 107, 115. This sum, with any interest that has accrued thereon, should be paid to Helen R. Robinson.

Another question is whether the mortgage of $5,000, which is an incumbrance outstanding upon a part of the real estate, is a debt of the estate to be paid by the plaintiff. Upon the facts stated, this debt appears to be barred by the special statute of limitations. It is therefore not a debt to be paid by the plaintiff, but is an incumbrance upon the real estate, subject to which the property will be sold if a sale of this lot is made by the plaintiff.

The question most discussed among the parties relates to the request for an instruction to the plaintiff as to which of said parcels of real estate he shall first sell or mortgage, and which of said parcels he shall thereafter sell or mortgage, if it becomes necessary to sell a second parcel. The power to authorize such a sale of real estate resides in the probate court, under Rev. Laws, c. 146, §§ 6, 7, 8. In a proceeding of this kind this court cannot direct or control the probate court in its action under these sections. All parties interested join in the prayer of the plaintiff for instructions on this point, and we think the court properly can instruct him as to his action in making an application to the probate court. The decision on his application will depend upon the view of that court, dealing with the case as it is then presented.

The testatrix made her son and her brother executors of her will. After providing for the payment of her debts and funeral expenses, and for the disposition and care of her cemetery lots, and after giving to her sister her wearing apparel and the specific legacy already referred to, she gave to her son Dr. Cogswell and her brother Dr. Hall, ‘their heirs and assigns in fee simple,’ all her real estate. She then made numerous provisions as to the management and disposition of it, and as to payments to be made from the proceeds of it. Although she did not use the word trust or trustee, we think the effect of the will is to give to Dr. Cogswell and Dr. Hall the legal title to all this property, to be held in trust to manage and finally dispose of it according to the directions subsequently given in the will. In Hall v. Cogswell, 183 Mass. 521, 523, 67 N. E. 644, it is said that the clause giving Dr. Cogswell $6,000 out of the proceeds of the sale ‘creates a trust or a charge on these two houses.’ The double dwelling house numbered 9 and 11 Center street, built by the testatrix, is treated by her in different particulars as one estate. She provides that it shall not be sold until the expiration of five years after her decease, and she refers to ‘the balance of the money remaining from the sale of said dwelling houses.’ In reference to the use to be made of them so long as they remain unsold she considers them separately. Number 9 is to ‘be used, occupied and enjoyed as and for a home for said Dr. Charles F. Cogswell, Dr. Newbert J. Hall, Helen R. Robinson and her son John Brooks Robinson, so long as said Dr. Cogswell and Dr. Hall shall own the same.’ These persons are her son, her brother, her sister and her nephew. She evidently contemplated a use of the property by these relatives as members of one family, living harmoniously together. The property was to be ‘enjoyed’ as a ‘home.’ For reasons which do not fully...