Watkins v. Briggs

• Decision Date: 30 June 1943
• Citation: 314 Mass. 282,50 N.E.2d 64
• Parties: THOMAS W. WATKINS v. GEORGE L. BRIGGS, executor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

314 Mass. 282

50 N.E.2d 64

THOMAS W. WATKINS v. GEORGE L. BRIGGS, executor.

Supreme Judicial Court of Massachusetts, Essex.

June 30, 1943

May 20, 1941.

Present: FIELD, C.

J., DONAHUE LUMMUS, DOLAN, & RONAN, JJ.

Set-off. Executor and Administrator, Set-off of debt against legacy. Frauds Statute of. Lien, Equitable.

The defence of the statute of frauds, not having been pleaded, was not open to the petitioner in a proceeding in a Probate Court against an executor wherein the petitioner sought to recover a legacy from the respondent and the respondent sought to enforce a claim of the estate against the petitioner which was within the statute.

Evidence warranted findings by a judge of probate that a legatee under a will had agreed with the executor that his legacy should be charged to secure his payment of a deposit which he had promised the executor to make against the purchase price of real estate of the testator bid in by the legatee at an auction sale conducted by the executor under a license from the court, and that thus an equitable lien was created; and a decree setting off the amount of such deposit against the legatee's claim upon the executor for the legacy was proper.

PETITION, filed in the Probate Court for the county of Essex on September 10 1940, to compel the respondent to pay the petitioner a $1,000 legacy under the will of the respondent's testator.

The respondent in his answer set up a claim against the petitioner for $1,085 alleging that the petitioner "in consideration of the agreement of the executor to accept his bids [at an auction sale of lands of the testator conducted by the executor under license of the court] without a down payment of ten per cent . . . of the bid price agreed that he, the said petitioner, would pay to the respondent on the following day an amount equal to ten per cent . . . of the bid price on such parcels of land as might be bid in by him at said auction," and that the petitioner was indebted to the respondent in the sum of $1,085 as the total of such agreed ten per cent payments due on bid prices aggregating $10,850.

The petitioner appealed from a decree entered by Phelan, J.

In this court the case was submitted on briefs.

F. H. Magison, for the petitioner.

J. B. Brown & W.

J. Good, for the respondent.

LUMMUS, J. Under the will of James E. Watkins, of which the respondent is the surviving executor, the petitioner was given a legacy of $1,000, payment of which is sought in this petition under G L. (Ter. Ed.) c. 197, Section 19. Wilbur v. Hallett, 305 Mass. 554 . Evidently because of a deficiency of assets, the petitioner is entitled to only seventy per cent of the legacy, or $700. No contention to the contrary is made. The probate judge ordered the respondent to give the petitioner credit for $700 against the "claim of the estate against the petitioner for $1,000 arising out of the petitioner's refusal to pay to said respondent deposits on the purchase price of certain real estate as agreed." We need not consider why the claim of the estate against the petitioner was fixed at $1,000 instead of $1,085, for the respondent has not appealed. The claim for the deposits may be treated as separate from the rest of the contracts to buy. Thompson v. Kelly, 101 Mass. 291 . The petitioner appealed, and the case comes here upon a report of the evidence without special findings.

On July 15, 1937 the respondent, under a license from the court, held an auction sale of the real estate of the testator. The auctioneer stated in the presence of the petitioner that bidders must pay ten per cent of the price at the time and place of sale, and the balance on the delivery of the deed. The real estate was sold parcel by parcel. The petitioner bid $3,000 for the first parcel, and was the only bidder. After that bid was accepted, the respondent told the petitioner that the requirement was a ten per cent down payment. The petitioner answered, "I am going to bid on several parcels today and you needn't worry about my payment. I am good for it. After I get through bidding I'll pay for my parcels I bid in on the ten per cent basis." He said further that "he was good for it and that there was money enough in the estate coming to him," that "the estate owed him plenty of money." In fact he had no money coming from the estate...