Kingman v. Kingman , 121 Mass. 249 ( 1876 )

Morton, J.

The question whether the evidence in this case was sufficient to overcome the presumption of payment from lapse of time was a question of fact. Andrews v. Sparhawk, 13 Pick. 393. Cheever v. Perley, 11 Allen, 584. It was for.the presiding justice who tried the case to weigh the testimony and to determine whether, in view of all the circumstances of the case, it controlled the presumption of payment, and we cannot revise his findings upon matters of fact.

The other question reserved by the report is, whether the plaintiff can maintain an action of contract to recover the value of the other provisions made for her in the will of her father. The will gives to the testator’s wife “ the use and improvement of all my part of the dwelling-house where we now reside, except the right and privilege therein which is hereinafter devised to my daughter Tempy.” It also gives to her “ so much firewood, furnished at the door, prepared for the fire, as she may need to support such fire or fires as her comfort may require.” It then contains the following provision: “ I give to my daughter Tempy the use and improvement of so much of my house as she may need during her life, and also a privilege at the fire, which I have made for my wife, while they live together. I also give her twenty dollars, and the use of one seat in my pew on the south side of the meeting-house during her life.” We think the intention of the testator was to give to his wife a life estate in the house, subject to a privilege or easement in his daughter to occupy so much of it as she needed during her life. The whole tenor of the will shows that he contemplated that the use and enjoyment of such part as she needed was to be personal to her. She took an interest in the real estate in the nature of an easement or servitude, but not as tenant in common with her mother or the residuary devisee. The “ privilege at the fire was merely an incident of the use and enjoyment of her easement, which would continue while she and her mother lived together.

These gifts cannot be held to be in the nature of a legacy of personal property, for which an action of contract to recover their value can be maintained. If she has been disturbed in the enjoyment of her easement, an action of contract is not the proper remedy.

We have not considered the question of the plaintiff’s right to a seat in the pew, as it has not been argued by counsel, and there was no evidence that the defendants’ intestate had interfered with this right. Judgment for the defendants.