250 Mass. 83 | Mass. | 1924
This is a suit in equity wherein the plaintiff seeks to have set aside a claim for curtesy filed by him with respect to the settlement of the estate of his testate wife. After a demurrer to the bill had been overruled, the case was referred to a master, under a rule which required him to make report of his findings together with such facts and questions of law as either party might request.
The evidence is not reported. Therefore the facts found by the master must stand unless they are mutually inconsistent or contradictory. Glover v. Waltham Laundry Co. 235 Mass. 330, 334, and cases there collected. Volpe v. Sensatini, 249 Mass. 132. There is no incongruity in the several findings made. Hence they must be accepted as true.
The facts as found by the master are that the wife of the plaintiff deceased in 1917 without issue, leaving personal estate insufficient to pay her debts and charges of administration and leaving real and personal estate of not exceeding in the aggregate $5,000. She left a will and codicil, the provisions of which were less favorable to the financial in
The finding of the master is not quite clear. We interpret it, though with some hesitation, to mean that there was accident and mistake so far as concerns the plaintiff himself; that he had no purpose or design to elect to claim curtesy in the estate of his wife, but only to waive the testamentary provisions made for him by her, and that through some misadventure amounting to accident or mistake on the part of his counsel, the election to claim curtesy was filed contrary to the plaintiff’s desire and intention.
The two papers as filed were clear in terms and in legal effect. They conformed to the terms of the statute and
The findings of the master do not go to the extent of establishing negligence on the part of the plaintiff. He consulted competent counsel betimes and was guided by their advice. Dzuris v. Pierce, 216 Mass. 132, 137. Reggio v. Warren, 207 Mass. 525.
The plaintiff is not barred by loches from maintaining his bill. One cannot slumber on his rights and thereafter pray for relief in equity. No one has suffered by the delay of the plaintiff in the case at bar, and it has not been unreasonably long. O’Brien v. O’Brien, 238 Mass. 403, 411. New York Central Railroad v. Ayer, 239 Mass. 70, 77, 78.
There was no error in the admission of testimony by the plaintiff of conversations with his attorney touching his purpose in consulting him or in stating categorically his own intent as to claiming curtesy. The plaintiff’s whole case rested upon the contention that by accident or mistake his own settled design as to his wife’s estate had been frustrated. Any competent evidence was admissible to prove that part of his case. His declarations in the circumstances here shown had probative value in that connection and were competent. Butterfield v. Reed, 160 Mass. 361, 370. Sherman v. Sherman,
It follows from all that has been said that the demurrer was overruled rightly.
Decree affirmed with costs.