1 Low. 416 | U.S. Circuit Court for the District of Massachusetts | 1869
Upon the first point the ground taken is, that the surviving trustee cannot sue alone. But the law is that upon a joint covenant the survivor alone can sue: 1 Chit. PI. 11; Anderson v. Mar-tindale, 1 East, 497; 2 Waif. Parties, 1527. It is said, and truly, that the indenture provides for filling vacancies, and for keeping the number of trustees always at three; but whether new trustees could sue for an old breach of covenant, we need not inquire, because none have been appointed, and the defendants have no concern with that matter, at least in this court. If any person interested chooses to apply to the probate court, no-doubt the vacancies may be supplied, but in the mean time the plaintiff has this cause of action vested in him by survivorship.
The other defence is that Mrs. Eliza Walker, on whose behalf and for whose sole benefit this covenant was made, has taken an interest under her husband’s will, inconsistent with the assertion of the right sought to be vindicated in this action. This is pleaded as. an accord and satisfaction and as a release. Granting that these defendants can set up this defence, which the case cited of Bonaffe v. Woodberry, 12 Pick. 456, seems to show that they may, and that it is properly pleaded, which it seems to be, yet I am of opinion that the facts do not support it as a bar to this action.
It is undoubtedly true that where provision is made in a will for the benefit of any one, he cannot both accept that benefit and repudiate the will in any part. Thus a widow who has an estate left to her in lieu of dower, cannot after voluntarily accepting the provision demand to be endowed; and there are many like cases. And the rule prevails in this country at law as well as in equity. In equity the party is put to an election; and even at law, this can sometimes be done, as where a paid legatee disputing the will was required to pay the amount of his legacy into court Hamblett v. Hamblett, 6 N. H. 333. But courts of law find much greater difficulty In dealing with such a case, and, as I understand, will not hold the dev.see or legatee to be barred, unless it is clear that he has made an irrevocable election. See the remarks of Lord Bedesdale, 2 Schoales & L. 450. If there is doubt on that point, the executor must be left to his remedy in equity, where full and complete justice can be done to both parties.
When the question is whether a legacy is intended as satisfaction for a debt, the same general rule prevails, but all intendments of law are against the inference of such an intent. See Chancey’s Case, 2 White & T. Lead. Cas. Eq. 380, and notes to Am. Ed.; Strong v. Williams, 12 Mass. 391. Very slight circumstances will avail to negative any such presumption, as for instance the mere fact that the testator has directed all his debts and legacies to be paid, or that the legacy is less beneficial in any respect though more so in others, than the debt. In the present case, the testator leaves a fund to trustees to divide the income, and eventually, after the lapse of many lives, the principal, among his six children and their representatives, and directs that, if necessary, the trustees may in their discretion, out of the income of this fund, pay his wife enough to make her Income up to $3,000 a year, if the income of the property settled by the indenture should fall short of that sum; and adds: “I having
Here is a very clear intent expressed to bar dower; but it is by no means so clear that he intended this provision to be a satisfaction of the amount due this plaintiff for the benefit of his wife. It is mainly a provision for his own children, of which he says that one inducement is that he may in equity and honor owe them and their mother something for what he received from the estate of this brother and some one else. He acknowledges no legal obligation, and does not assert that he is making any satisfaction. The provision for his wife is only contingent, and at the discretion of his trustees. Considering the great care and minuteness with which such matters are provided for in the will, I find it difficult to understand this ambiguous declaration as meaning that his wife, if she takes any income in any year shall not be paid this debt. Suppose she does not take it, the trust fund remains the same, only her children get a somewhat larger income. The defendants must read this will as meaning that, in consideration of a debt due his wife, he leaves certain property in trust for their children, out of which the wife may, in certain contingencies and on some occasions, at the discretion of his trustees, have an income. What is there for her to elect? She cannot elect that the trust-fund shall not be created, nor that her children shall not have the income. If the question were between her and the children, I can understand that she might be required to choose. But suppose the children all assent 10 her having this income, what concern have the executors with the question?
If she is put to such an election, the evidence does not show that she has made the same so conclusively that a court of law will hold her barred. It seems that she has accepted one installment of income and has refused all others. If there be any inconsistency, then the suffering this action to be brought may be an election, and the trustees may refuse to pay her any more income. This will work exact justice, and will require the point to be settled in equity, where this question of election can be more properly dealt with.
I find as matters of fact: (1) That the indenture referred to in the plaintiff’s declaration was made as therein sei forth, and that the plaintiff is the sole survivor of the three trustees named in said indenture; (2) that after the making of the indenture the defendant’s testator received the sum of $5964.39, which came to his wife, Eliza Walker, from the estate of her brother, Joseph Heard, who died after the date of said indenture, whereby he broke the covenants thereof; (3) that said Eliza Walker received the sum of $145.-51, on 14th July, 1S66, as an addition to her income for the year 1S05-0, under the third item of said testator’s will; and that she has refused to receive any further sums under said item of said will.
And as matters of law: (1) That said indenture is valid; (2) that the plaintiff as the sole survivor of the three trustees named in said indenture, may well have and maintain this action, and is entitled to recover said sum of $5904.39, with interest at six per cent, per annum, from the dates of the payments respectively, and his costs; (3) that said cause of action has not been released by the act of said Eliza above mentioned.
[The validity of the indenture had been sustained in another suit before this case was tried. See Walker v. Walker, 9 Wall. (76 U. S.) 743.]
