Hill v. Whidden, 158 Mass. 267

158 Mass. 267 | Mass. | 1893

Knowlton, J.

There was abundant evidence to warrant the finding of the justice of the Superior Court that the notes declared on were given as a part of the consideration for the release to the defendant, and that they belonged to the estate of the plaintiff’s deceased husband.

The questions raised by the defendant’s requests for rulings may be reduced to three: first, whether it was competent to prove that the notes were given as a part of the consideration of the release signed by the plaintiff as executrix, notwithstanding the recital in the release of a different consideration which does not include this; secondly, whether the notes, being given to the plaintiff in her own name, and not in her name as executrix, can be enforced, if founded on a consideration moving from her as executrix; and thirdly, whether they are barred by the release itself, which purports to discharge the defendant from all debts, demands, actions, or causes of action.

1. It has repeatedly been held in this Commonwealth that the recital of a consideration in a deed does not preclude either party from showing an additional consideration; and it was competent for the plaintiff to show that the notes were given as a part of the consideration for the release, in addition to the consideration mentioned therein. Wilkinson v. Scott, 17 Mass. 249, 257. Preble v. Baldwin, 6 Cush. 549. Clark v. Deshon, 12 Cush. 589. Twomey v. Crowley, 137 Mass. 184. Soule v. Soule, 157 Mass. 451.

2. The fact that the notes were made payable to the plaintiff in her own name, without mention of her official relation as executrix, does not affect their validity. It is her duty to collect them and account for the proceeds as assets of the estate of the testator.

3. The release does not bar or "discharge notes which came into existence as part of the transaction of giving the release, which were given as a part, of the consideration for it, and which first took effect, to create a liability, at the instant when the release took effect. The release operated only on liabilities which were in existence when it was given.

Exceptions overruled.