324 Mass. 18 | Mass. | 1949
These two proceedings in equity come here on appeals from final decrees dismissing the bills. In the first case the final decree was entered after the defendants' demurrers had been sustained. The bill in the second case, which sought declaratory relief, was dismissed after the entry of an interlocutory decree sustaining the defendants' “answer in abatement”, which we treat as a plea. See E. S. Parks Shellac Co. v. Jones, 265 Mass. 108, 110.
The First Case.
The case made by the bill in the first case is as follows; On April 30, 1945, the plaintiff Samuel Stabler and William Sevinor (hereinafter called the defendant) executed a written declaration of trust (called the Robert Margedale Realty Trust) for the purpose of holding real estate and other property. On the same day the trust instrument was duly recorded in the registry of deeds (south district) of Essex County. The term of the trust is twenty years. Pursuant to the declaration of trust certain properties situated in Essex County were acquired in the name of the trust and are still held by it. The beneficiaries of the trust, each of whom has a one-half interest, are. Sara Stabler and Ida Sevinor, the wives of the settlors.
On October 29, 1945, the plaintiff and the defendant signed and acknowledged an instrument in writing amending the declaration of trust. The amendment contained, among others, the following provision: “(1) At any time if any trustee desires, he shall have the right to terminate the trust by notice in writing to the other trustee.” The amendment was duly recorded in the registry of deeds on October 30, 1945.
On March 3, 1947, the plaintiff gave notice in writing to the defendant of his intention to terminate the trust in which he stated that he and his attorney would meet the defendant at his convenience for the purpose of discussing the disposal of the property held under the trust. The declaration of trust “fails to provide for disposition of the property upon such termination.” The defendant, it is alleged, has “unreasonably neglected to consult or confer with . . . [the plaintiff] to determine the manner and procedure for disposal of the property held by the said trust.”
The principal prayers of the bill are that the court order (1) a sale of the property at public auction, and (2) the distribution of the net proceeds of the sale in equal shares to the trustees.
Demurrers filed by the defendants William and Ida Sevinor were ■ sustained. The- demurrers, which were substantially the same, assigned several grounds, but the only one now relied on is the second which is in substance that the plaintiff h'as failed to state a case.
The plaintiff stated a case which entitled him to relief and the demurrers ought not to have been sustained. According to the allegations in the bill the amendment was made in the manner prescribed by the trust instrument and the notice to terminate was made in compliance with the provisions of the amendment. Upon the refusal of the defendant to recognize that there had been a termination of the trust, the plaintiff was entitled to invoke the aid of the court.
Interlocutory decree reversed.
Final decree reversed with costs.
The Second Case. .
The principal difference between the bill in the first case and the bill in this case is that in the latter declaratory relief is sought under G. L. (Ter. Ed.) c. 231 A, as inserted by St. 1945, c. 582, § 1.
A court of law will not permit a defendant to be vexed by two actions of law, for the same cause, in the same jurisdiction, by the same plaintiff, and ordinarily will order an abatement of the second action. Sandford v. Wright, 164 Mass. 85, 87. Worcester v. Lakeside Manuf. Co. 174 Mass. 299, 302. Corey v. Tuttle, 249 Mass. 135, 138. Alpert v. Mercury Publishing Co. 272 Mass. 39, 41, 42. Beauregard v. Capitol Amusement Co. 301 Mass. 142. Where, however, one of the proceedings is in equity a less rigid rule prevails. Spear v. Coggan, 223 Mass. 156. Corey v. Tuttle, 249 Mass. 135, 138. Powers v. Heggie, 268 Mass. 233. Kelly v. First Citizens Bankers Corp. 316 Mass. 520, 521. The institution of successive proceedings at law and in equity based upon the same facts does not as matter of law require- the dismissal of one of them. Powers v. Heggie, 268 Mass. 233, 239. But even in that case “the principle applies that a defendant may not be vexed without reason by successive proceedings upon the same cause of action, and that a court has power to take any course required to do justice.” Kelly v. First Citizens Bankers Corp. 316 Mass. 520, 521. Ordinarily where the defendant is. being harassed by the simultaneous prosecution of proceedings at law and in equity for the same cause, the court, instead of ordering a dismissal of the second proceeding, will give the plaintiff an opportunity to elect between them. Sandford v. Wright, 164 Mass. 85, 87. Spear v. Coggan, 223 Mass. 156, 158. Corey v. Tuttle, 249 Mass. 135, 138. Powers v. Heggie, 268 Mass. 233. In all of the cases cited above, in which the less rigid rule has been applied, one of the proceedings has been at law and one in equity. But we see no reason for not applying the same principle where, as here, both suits are in equity.
There would appear to be no good reason why the defendants here should be subjected to both suits. The
Let the entry be
Interlocutory and final decrees reversed. Plea to be sustained and bill dismissed unless within thirty days from the entry of this rescript the plaintiff Samuel Stabler causes a dismissal of the first case (No. 58912 Eg.). If such dismissal is made, then this suit is to stand for further hearing.
By an amendment to the bill the beneficiaries were named as defendants.
The prayers in the bill asked the court to determine whether the provision ' in the amendment relating to the termination of thé trust was valid, and, if so, whether the notice of termination was valid; to declare the manner in which the trust is to be terminated and what disposition is to be made of the property; and to make such other declarations of the rights of the parties as the court may deem proper.