Gale v. Nickerson

| Mass. | May 9, 1890

Knowlton, J.

The plaintiffs contend that, as heirs at law of John Nickerson, they are severally entitled to a share in his estate under the eighth clause of his will, and if not under the eighth clause, then under the ninth; and they argue that the property named or referred to in these clauses is to be divided among his heirs at law in accordance with the statute of distributions.

This contention is founded on a mistaken construction of the will. Under the eighth clause, all his estate not previously disposed of was given to Seth Nickerson and Eunice S. Nickerson, in trust for Miranda J. Nickerson and for themselves. The entire beneficial interest in the property passed to these three persons, and the trust was created to provide for the management of the estate, and to secure the share of Miranda J. Nickerson to the others if she should marry. The plaintiffs have no interest on which the bill can be maintained for the principal purpose for which it was brought.

The only remaining grounds on which they seek to maintain it are, that the plaintiff Pauline T. Gale is given a legacy of twenty dollars by the will, and also, as one of the next of kin of Thankful N. Thomas, is entitled to one half of a legacy of five hundred dollars, and that the plaintiff Sarah T. Crowell, as the daughter and heir of Abby B. Wait, who was another of the next of kin of. Thankful N. Thomas, is entitled to the other half of this legacy, and is also entitled to another legacy of twenty dollars given to her mother. In this part of their case, the only equitable relief of which the plaintiffs think they are in need is the cancellation of the instrument of release upon which they say their signatures and the signatures of Thankful N. Thomas and Abby B. Wait were forged. But if the facts are as stated in the bill, they do. not need the aid of a court of equity. Pub. Sts. c. 136, § 19. A forged instrument would not avail against them, in an action at law brought to recover their legacies. Their remedy at law is complete and adequate. Moreover, they are not the proper parties to sue for the legacies of Thankful N. Thomas and Abby B. Wait. Actions to recover these should be brought by administrators. Indeed, the bill alleges that a suit has already been brought by the administrator of the estate of Thankful N. Thomas to recover her legacy, which, so far as appears, may still be pending. The legacy of twenty dollars to Pauline T. Gale is the only one for which either of the plaintiffs can sue in her own name, and that is too small to justify the interposition of a court of equity to grant the relief prayed for. Smith v. Williams, 116 Mass. 510" court="Mass." date_filed="1875-01-26" href="https://app.midpage.ai/document/smith-v-williams-6417932?utm_source=webapp" opinion_id="6417932">116 Mass. 510. Chapman v. Banker & Tradesman Publishing Co. 128 Mass. 478" court="Mass." date_filed="1880-03-22" href="https://app.midpage.ai/document/chapman-v-banker--tradesman-publishing-co-6419914?utm_source=webapp" opinion_id="6419914">128 Mass. 478. The St. of 1884, c. 285, § 1,^* is not applicable to an action of this kind.

The defendants rely upon other' grounds of demurrer, which it is unnecessary to consider. Without intimating that they are insufficient, we must order the

Decree affirmed,.

* This section is as follows:

“ Section 1. A bill in equity may be maintained to reach and apply in payment of a debt any property of a debtor, as provided by clause eleven of section two of chapter one hundred and fifty-one of the Public Statutes, notwithstanding the fact that the plaintiff’s debt does not equal one hundred dollars in amount, or that the property sought to be reached and applied is in the hands, possession, or control of the debtor independently of any other person, or that it is not within the State, or that it is of uncertain value, provided the value can be ascertained by a sale or appraisal, or by any means within the ordinary procedure of the court, or that it cannot be reached and applied until a future time.”