142 Mass. 156 | Mass. | 1886
The plaintiff contends that he has an equitable interest in the house and land in Billerica Street in Boston, which he can reach through this bill in equity, and apply in payment of his debt. If his money was used in the purchase of this estate without his knowledge or assent, he may have had an equitable lien thereon, and he may have been entitled to relief. Bresnihan v. Sheehan, 125 Mass. 11, and cases cited.
The plaintiff contends that the letter of Mary O’Riley to him contains a good declaration of trust, in the following language: After a hard struggle, Thomas let me have a little of your money, which he gave me on these terms, that the deed should be made out in my name, that at my death all should be yours. All Thomas wants is a living out of it while he lives, and if you don’t approve of this letter, all the favor I ask of you is to give me one or two years and I will pay you up your money with thanks; for so doing you will be the means of making me a home in Boston whilst myself and husband live, and after that it is your property forever. This letter contains a statement of the misappropriation of the $400 of the plaintiff’s money by Thomas O’Riley, and an offer on the part of Mary to repay it in one of two ways. The plaintiff made no election. He did not notify Mary of any intention to elect. He never answered the letter. Mary lived in possession of the estate until July 21, 1865, when she died testate. The plaintiff was soon after notified of the contents of her will, which provided that Thomas O’Riley was to have a life estate in the house; that, upon his death, the defendant should take the estate upon condition that he paid the expenses of the last sickness and funeral of Mary, and also paid $500 to the plaintiff.
The defendant contends that, if the plaintiff intended to rely upon an equitable interest in the house, or upon the alleged declaration of trust, he should, immediately upon the receipt of the information concerning the will and its provisions, have notified the defendant of his intention; that it was his duty then to have enforced his claim upon the estate. Mary died in
The plaintiff is entitled to $500, under the will of Mary O’Riley, with interest from the time of the death of Thomas O’Riley. Upon the payment of this sum by the defendant into the clerk’s office, the bill will be dismissed.
Recree accordingly.