Richardson v. Lane

Crosby, J. The defendant’s testatrix, Mary A. Christie, and the plaintiffs entered into a written agreement, by the terms of which the plaintiffs (who are husband and wife) were to provide a suitable maintenance and support for the testatrix in her home at number 100 Western Avenue in Cambridge, during her life; and in consideration of such maintenance and support so furnished, the testatrix was to pay the plaintiffs the sum of $300, and also was to make a will devising the premises numbered 100 Western Avenue, Cambridge, to them “in fee simple.” When this agreement was entered into, Mrs. Christie was a widow without children, about eighty-four years old, and was suffering from injuries received by reason of a fall; she died testate on August 31, 1913. The second clause of her will is as follows: “I give and devise to Elias Richardson and Helen M. Richardson, his wife, of said Cambridge, in fee simple, my house and land numbered 100 on Western Avenue in said Cambridge.” On the date when the agreement above referred to was made, the above described real estate was subject to a mortgage. Upon this mortgage there was a balance due of $600, which amount still remains unpaid. This suit is brought against the defendant, as executor of the will of Mrs. Christie, for the purpose of compelling him to pay the mortgage. The case was heard by a judge of the Superior Court who made certain findings, including a finding that the plaintiffs did not know of the existence of the mortgage when they executed the agreement. ' It is agreed that Mrs. Christie was cared for and supported by the plaintiffs until her death in accordance with the terms of the agreement. The first question presented is: Are the plaintiffs entitled to the real estate discharged of the mortgage thereon? It is plain that, in the absence of anything to show a contrary intention, the plaintiffs were entitled upon the performance of their part of the agreement, to have the real estate devised to them free from any incumbrances. This conclusion results from the express terms of the contract or by necessary implication therefrom. The agreement that the testatrix would make a will devising the prem- [230] ises to the plaintiffs means that they should receive title thereto free from incumbrances. She did not agree to devise her right, title and interest in the property, or any other interest less than the whole estate. She did not agree to devise to the plaintiffs merely an equity of redemption, nor can such an intention be inferred. Swan v. Drury, 22 Pick. 485. Mead v. Fox, 6 Cush. 199. Callaghan v. O’Brien, 136 Mass. 378. Linton v. Allen, 147 Mass. 231. Smith v. Greene, 197 Mass. 16. That the plaintiffs are entitled to the real estate free from the mortgage, is obvious independently of the provision that the devise is to be “in fee simple.” The words “fee simple” relate to the quantity or extent of the interest in land: it is the largest estate and greatest interest that can be enjoyed in land. A fee simple is an absolute estate of inheritance. The only question remaining is whether this suit, having been commenced within one year after the defendant gave bond for the performance of his trust, was prematurely brought. R. L. c. 141, § 1. St. 1914) c. 699, §1. It is the contention of the plaintiffs that they are entitled to maintain the bill under R. L. c. 148, § 1; that they are not creditors of the deceased, and that the recovery which they seek would not be affected by the insolvency of the estate. We are unable to agree with this contention. The second prayer of the bill is “that the defendant as executor of the will of Mary A. Christie be ordered to pay off and discharge said mortgage given by Mary A. Christie to the Cambridgeport Savings Bank.” The suit is against the executor as the representative of the estate of the testatrix. What the plaintiffs seek is exoneration from the amount due upon the mortgage that they may hold the real estate relieved from the incumbrance; in order that this may be accomplished, the amount due will have to be paid out of the estate, thereby depreciating it accordingly. Manifestly such a demand would be affected by the insolvency of the estate, and it cannot be doubted that the plaintiffs are creditors within the meaning of the statute. It follows that the suit was prematurely brought, and must be dismissed. National Bank of Troy v. Stanton, 116 Mass. 435. Jenkins v. Wood, 134 Mass. 115. The cross bill cannot be maintained, as it appears that the [231] amount of debts paid by the executor is less than the amount paid by the plaintiffs as interest on the mortgage. The rulings made by the judge of the Superior Court were correct. In accordance with the terms of the report, a decree is to be entered dismissing the bill and cross bill both without costs and without prejudice. Ordered accordingly.