Walsh v. Walsh

• Decision Date: 02 December 1874
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William Walsh & another v. Richard J. Walsh & others

116 Mass. 377

William Walsh & another v. Richard J. Walsh & others

Supreme Court of Massachusetts

December 2, 1874

[Syllabus Material] [Syllabus Material]

Suffolk. Bill of review, filed October 6, 1874, in behalf of William Walsh and Bridget Walsh, infants, and heirs at law and devisees of Richard Walsh, against Richard J. Walsh Ellen E. Walsh and Thomas Keyes, to reverse a decree of this court, rendered January 1, 1873, in a suit in equity in which Ellen Donovan was the plaintiff; and the plaintiffs in review, and Richard J. Walsh, Ellen E. Walsh, both heirs at law of Richard Walsh, Margaret E. Walsh, his widow, and Thomas Keyes, special administrator of the estate of Richard Walsh, were defendants.

The bill of review set forth that the bill in equity brought by Donovan alleged that, on March 30, 1860, Michael Driscoll was seised of the equity of redemption of a parcel of land, with the buildings thereon, situated on South Street in Boston, and being the estate occupied by Donovan and Richard Walsh for a residence from 1860 to 1870; that Driscoll conveyed the estate to Richard Walsh, but the consideration therefor moved from Donovan and not from Walsh, who became seised of the equity of redemption in trust for the use and benefit of Donovan; that he held the estate in trust for her until his decease, which occurred September 14, 1871; that his heirs at law were his children; and that he also left a widow, Margaret E. Walsh; that if no will should be proved and allowed, the legal title to said estate had come to the parties last above named by descent and operation of law; that an instrument purporting to be the last will and testament of said deceased had been filed in the Probate Court, but had not been allowed and proved, and that the plaintiff was informed and believed that proof and allowance of said instrument was to be contested; that the residuary devisees named in said instrument were the said Bridget, William and Margaret E. Walsh, to whom the legal title to said estate had come by operation of the will, if the will should be proved and allowed, but charged with the trust in favor of the plaintiff; that the bill recited various facts, consisting in part of declarations and acts on the part of Richard Walsh tending to show that he acknowledged himself as trustee, and various acts of ownership on the part of the plaintiff, and set forth various transactions in regard to paying and making mortgages upon the said estate; that the bill stated that Walsh and his representatives were indebted to the plaintiff in the sum of $ 400 for money received on a mortgage, and that the said Walsh and his representatives should account for the rents and profits upon the said estate since January 1, 1864, and should pay over the same; that the bill alleged that the defendants therein named refused to convey said estate to the plaintiff, and that William and Bridget Walsh alleged that they were infants, and could not execute the conveyances to which the plaintiff claimed to be entitled; and that the prayer of the bill was, that Margaret E., Richard J., Ellen E., William and Bridget Walsh might be ordered to convey the said estate to the plaintiff, and that the said special administrator might be ordered to pay over to the complainant the sum of $ 400, and to account for and pay over to her also the rents and profits of the said estate since January 1, 1864.

The bill of review further alleged that Margaret E. Walsh and Thomas Keyes appeared, and suggested that the present plaintiffs were minors for whom no guardian had yet been appointed; whereupon Thomas Keyes was appointed guardian ad litem for the plaintiffs; that thereafter the plaintiffs, by their guardian ad litem, appeared and put in their answer to the bill, to the effect following: they admitted that on March 30, 1860, the said Michael Driscoll was the owner of the equity of redemption of the land described in the plaintiff's bill, subject to the mortgages amounting to $ 2100, and that on or about said date said Driscoll conveyed said land to Richard Walsh, subject to the said mortgages; but they denied that the consideration of said conveyance was only $ 1100, but averred that on the contrary it was, including said mortgages, $ 3650; they also denied every material allegation of the bill, alleging that the said Richard Walsh bought the estate for himself, and that it was paid for by him; that the said plaintiff had no other interest in the estate than as tenant of the said Walsh; that the said Walsh had always carried on the transactions relating to the estate in his own name, and not as trustee; they denied that said Walsh was bound to account to the plaintiff as alleged; and they denied that any trust resulted in said estate to the plaintiff; that Donovan filed a replication to this answer; and issue having been joined, the cause was heard before a justice of this court, on January 1, 1873, when a decree was pronounced, which was afterwards entered, as follows: "And the plaintiff and the defendants, Margaret E. Walsh, Richard J. Walsh, Ellen E. Walsh, Thomas Keyes in his capacity of special administrator of the estate of Richard Walsh, deceased, and also in his capacity of guardian ad litem of Bridget Walsh and William Walsh, consenting to the following decree; and this court being satisfied upon the representations of counsel that the decree is fit and proper to be made as against the said Bridget and William; it is thereupon ordered and adjudged and decreed, as and for the final decree in this cause, that a trust be declared of one undivided half of the estate described in the plaintiff's said bill, subject to the incumbrances therein set forth; that the said defendants, Richard J., Ellen E., Bridget and William, convey said undivided half of said estate to the plaintiff by deed of quitclaim and release; that said defendant Keyes file an account of his special administration within thirty days, and that he pay the plaintiff one half of the net rents and profits of said estate received by him as such special administrator; that no costs be taxed."

The bill of review alleged that thereafter, on February 8, 1873 Richard J. Walsh and Ellen E. Walsh filed a motion in this court that the decree entered as and for the final decree in the cause, January 1, 1873, be in part rescinded and modified; which was done in accordance with the motion by a decree pronounced March 11, 1873, which was afterwards entered, as follows: "In this cause the death of the plaintiff since the entry of the decree of January 1, 1873, having been suggested, and it appearing that Richard J. Walsh of Boston, clerk, and Ellen E. Walsh of Boston, singlewoman, are entitled to prosecute this cause in the stead of the plaintiff, by reason of a conveyance from the plaintiff, a copy of which is filed with the papers in this cause, it is therefore ordered, adjudged and decreed as and for the final decree in this cause, that the defendants, Bridget and William, release and quitclaim to the said Richard J. two thirds of one undivided half of the estate described in the plaintiff's bill, and to the said Ellen E. one third of one undivided half of the said estate, the said grantees assuming, respectively, one third and one sixth of the mortgage thereupon, said conveyances to be executed within ten days from the date of this decree; that the defendant, Thomas Keyes, file an account of his special...