Sears v. Cunningham

• Decision Date: 17 May 1877
• Citation: 122 Mass. 538
• Parties: Paul Sears v. Catherine H. Cunningham
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

122 Mass. 538

Paul Sears v. Catherine H. Cunningham

Supreme Court of Massachusetts

May 17, 1877

Suffolk. Contract for breach of the covenants of seisin and right to convey, contained in a deed from the defendant to the plaintiff of a parcel of land in Dorchester.

The case was submitted to the Superior Court, and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows:

The land was a part of the estate devised to the defendant by her husband, who died in August, 1872, at the age of seventy whose will, drawn by himself in January, 1870, was admitted to probate, and was in the words following:

"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."

The testator left five children by his marriage with the defendant, all of whom are still living; and his estate consisted mainly of about nineteen acres of land in Boston close to the thickly settled part thereof, the tax levy on which, the year of his death, was $ 1244, and which was of great value for building purposes, but yielded an income of only $ 350 a year to the testator, and now yields little or no income to the defendant. On this land was the testator's dwelling-house and a small cottage, rented for $ 150 a year. The testator likewise had a house in Chelsea worth $ 3600, his household effects, and about $ 5000 in notes secured by mortgages. He was also seised, to the use of his wife, under the will of her mother, of another estate in Boston, referred to by the last words of the will, on which the tax levy for the same year was $ 234, and which yielded at that time an annual income of $ 2000.

The testator's income from all sources for many years prior to his death did not much exceed $ 1000 a year; but the defendant's separate income of $ 2000 was received and expended by him, and both his own income and that of the defendant were together no more than sufficient to meet his current family expenses; and, to meet his yearly increasing taxes, he was accustomed to sell parcels of his land as opportunity offered.

The defendant, after her husband's death, applied the $ 5000 in notes paid over to her by the executor, the whole income she could derive from the estate devised to her by the will and her entire separate income, to the payment of her...