271 Mass. 441 | Mass. | 1930
This is a bill in equity, filed in the Supreme Judicial Court and thereafter transferred to the Superior Court. The plaintiffs are the widow, Margaret E. Hooker, of Allan A. Hooker, late of Wellesley, who died October 21, 1927, his father, George A. Hooker, who is his next of kin and only other heir at law, and Samuel R. Cutler, the administrator of his estate, whose bond as such administrator was approved November 16, 1927. The defendant is Alice G. Porter.
The plaintiffs allege that the estate of the deceased is valued at about $150,000 and includes a dwelling house in Wellesley, Massachusetts, in which the widow resides, a farm in Salem, New Hampshire, and personal property in both States, that he executed a will on December 21, 1912, before his marriage (on March 12, 1926) to the plaintiff, Margaret E. Hooker, which contained among qther bequests a legacy to the defendant, who was his cousin, and that his marriage operated as a revocation of the will whereby she lost her legacy.
The plaintiffs further allege that the defendant, being disappointed in the hope of receiving the legacy, devised a scheme to secure the entire estate of the deceased, and “did fabricate a series of documents to which the signatures of said Allan A. Hooker were fraudulently simulated, the said respondent intending by the means of the combined effect of these documents fraudulently to make claim to and ultimately secure said estate,” and that these documents pretend to be (1) a deed to the defendant of real estate in Massachusetts and New Hampshire, including also, “any other premises at any time acquired by” him (dated June 27,
The plaintiffs further allege that they are advised and believe that the documents are forgeries, and that the existence of them in the possession of the defendant is “a menace to the rights” of the plaintiffs, and “an obstacle to the enforcement of such rights and a reflection upon the good name of the deceased and his family, including the . . . [[plaintiffs],” and will remain such until they are “promptly brought into a Court of Equity, out of reach of the . . . [[defendant], and finally ordered cancelled and destroyed,” and that the agreements “are on their face, apart from the claim of fabrication null, void and unenforcible as against public policy, and for failure of consideration and because they are unconscionable.”
The plaintiffs allege that the defendant has caused actions to be brought against the plaintiff Cutler, as administrator
The prayers of the bill are that the defendant be ordered to deliver up the documents and bring them into court and that they be cancelled and destroyed, and that she be enjoined from recording any of them, or borrowing money on the security thereof, from taking possession of the property in Wellesley, and the farm in New Hampshire, or in any way interfering with the plaintiffs’ possession thereof, from “selling, transferring, mortgaging, incumbering or in any way alienating said property claimed to have been conveyed by said Allan A. Hooker or negotiating said promissory note,” and from prosecuting said actions in the Superior Court or instituting any new proceedings on the documents.
The defendant filed a so called “plea in abatement,” in which she set up (1) that the plaintiffs have “a plain, adequate and complete remedy at law,” (2) that actions at law are pending in the Superior Court, which court has power “to afford a plain, adequate and complete remedy for all of the parties interested,” (3) that the plaintiffs are joined improperly, since the plaintiff Cutler is without interest in the real estate and the other plaintiffs are without interest in the personal estate, and (4) that the bill is multifarious.
The trial judge found as facts the allegations of the bill as to the plaintiffs, and found also that “Allan A. Hooker left real estate in Massachusetts and in New Hampshire” and “personal property of a substantial amount,” that the defendant “was a relative of the said Allan A. Hooker,” and she “has in her possession some or all of the papers or instruments referred to in the bill of complaint as being in her possession,” that she recorded the deed in New Hampshire, that she “has not taken possession of the property referred to” therein, and that she has caused two actions at law to be brought against the plaintiff Cutler, as administrator, substantially as alleged in the bill of complaint. The judge
We pass the pleadings without discussion to consider the questions of substance which have been treated by the parties as raised thereby.
The “plea in abatement” was sustained rightly.
There is misjoinder of parties plaintiff. “Generally, when several persons have a common interest in the subject matter of the bill, and a right to ask for the same remedy against the defendant, they may properly be joined as plaintiffs.” Zimmerman v. Finkelstein, 230 Mass. 17, quoting Cadigan v. Brown, 120 Mass. 493, 494. The bill alleges a scheme on the part of the defendant to secure the entire estate of the deceased by means of the series of five forged instruments which purport to bear dates from June 27, 1914, to September 29, 1924. The subject matter of the bill is the protection of the interests of all the plaintiffs in the estate of the deceased, real and personal, and the remedy sought by all of them is the cancellation of the entire series of instruments.
The administrator has not the right to ask for the remedy of cancellation either of the entire series of instruments or of any of them. He has “a plain, adequate and complete remedy at law” — an objection which was taken seasonably. See Baker v. Langley, 247 Mass. 127, 132. Consequently, he is joined improperly as a party plaintiff. The case is unlike Parker v. Simpson, 180 Mass. 334, where, though the details of the relief given to the several plaintiffs were different, all plaintiffs were entitled to relief of the same general nature. - See also Gilson v. Hutchinson, 120 Mass. 27.
The suit is brought, in part, to remove by the cancellation of the instruments an alleged cloud cast upon title to real estate in this Commonwealth formerly belonging to the deceased, by the deed dated June 27, 1914, and the instru
So far as the interest of the administrator in the personal estate of the deceased within Massachusetts and his liabilities, as the personal representative of the deceased, under the instruments referred to in the bill, are concerned, his remedy at law is “plain, adequate and complete.” The deed dated June 27, 1914, does not purport to affect title to any personal estate in this Commonwealth. The statute of limitations has run against an action on the agreement to marry, even if it is conceivable that such an action survived the deceased. See Stebbins v. Palmer, 1 Pick. 71; Smith v. Sherman, 4 Cush. 408; Chase v. Fitz, 132 Mass. 359. The actions at law brought by the defendant are based upon the three other instruments. As between the administrator and the defendant the validity of these instruments can be determined in those actions and it does not appear that the administrator’s defence cannot be made as well in the actions at law as in this suit in equity. Forged instruments would not avail against the administrator in such actions, nor instruments, which, as alleged in the bill, “are on their face, apart from the claim of fabrication null, void and unenforcible as against public policy, and for failure of con
Since the reasons above stated warranted the trial judge in sustaining the “plea in abatement,” it is not necessary to consider whether it could have been sustained for any other reason. Nor is it necessary to consider whether the widow, in possession of the real estate in Massachusetts, or the other heir at law, could maintain a bill to remove the alleged cloud cast thereon by the deed dated June 27, 1914, or the instru
There was no error in the denial of the motion to specify the ground upon which the “plea in abatement” was sustained.
It follows that the bill was dismissed rightly. As the case was not disposed of on its merits, it was proper that the decree should be “without prejudice.” Payson v. Lamson, 134 Mass. 593. Lakin v. Lawrence, 195 Mass. 27. Preston v. Newton, supra. Boston & Maine Railroad v. D'Almeida, 221 Mass. 380.
Order denying motion affirmed.
Decree affirmed with costs.