Whitney v. Closson

• Decision Date: 05 November 1884
• Citation: 138 Mass. 49
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Delcena M. Whitney v. Emily Closson & others

138 Mass. 49

Delcena M. Whitney v. Emily Closson & others

Supreme Judicial Court of Massachusetts

November 5, 1884

Argued September 17, 1884.

Franklin.

Appeal from a decree of the Probate Court dismissing a petition filed April 2, 1883, under the Pub. Sts. c. 124, §§ 3, 17, by the widow of Lyman H. Whitney, deceased intestate and without issue, to have certain real estate of the deceased, to an amount not exceeding $ 5000 in value assigned to her in fee. Hearing before C. Allen, J., who reserved the case for the consideration of the full court, in substance as follows:

It was admitted that the petitioner was entitled to maintain the petition, unless she was barred by reason of the following facts:

On November 30, 1880, Lyman H. Whitney and the petitioner, in expectation of a separation between them, executed the following agreement:

"Know all men by these presents, that we, Lyman H. Whitney of the first part, and Delcena M. Whitney of the second part, both of Sunderland in the county of Franklin and Commonwealth of Massachusetts, witnesseth, that the party of the first part hereby agrees and binds himself to release and convey, and doth hereby release and convey, all and singular to the party of the second part, and quitclaim unto said party of the second part, all his right and title to and interest in the property now held, and also of any property she may in future acquire, to her and her other heirs, binding himself by these presents never to ask for, or try in any manner to obtain from her, or her executors, or administrators or assigns, any interest or share in her said property now held or to be acquired by her.

"This in consideration of certain arrangements or agreements made by and between us, the said parties of the first and second parts.

"And I, the party of the second part, in consideration of the sum of one thousand dollars paid me by the party of the first part, the receipt whereof I do hereby acknowledge, do hereby remise, release, and quitclaim unto the said party of the first part all my right and title to and interest in the real estate and personal property owned and held by the party of the first part, and also to all he may in the future acquire and become possessed of. And I hereby further agree and bind myself to sign all deeds made by him in the sale of his real estate, when requested by him so to do; to thus release to the purchaser or purchasers of his real estate, or to mortgagees thereof, my rights of dower and homestead in said real estate.

"In other words, I, Delcena M. Whitney, the party of the second part hereto, in consideration of the above-named sum of one thousand dollars paid me by the party of the first part, and also in consideration of certain agreements and arrangements made between us, the parties hereto, agree, and bind myself and my heirs, executors, and administrators, never to ask for or try to obtain in any way or manner any part of the property, real or personal, which the said party of the first part now is in possession of or may hereafter acquire.

"Witness our hands and seals, this thirtieth day of November, in the year one thousand eight hundred and eighty."

On the same day, Lyman H. Whitney executed a mortgage deed, in which the petitioner joined in release of her right of dower and homestead, to Henry S. Sheldon, of certain parcels of land being the same mentioned in the petition in this case. The condition expressed in the mortgage was the payment of five promissory notes for $ 200 each, with interest, the first note coming due on January...