McGivney v. McGivney , 142 Mass. 156 ( 1886 )

Gardner, J.

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 case finds, however, that his sister, Mary O’Riley, purchased the house in September, 1857; and that in December of that year she wrote to the plaintiff, then in California, informing him that she had used part of his money in its purchase, “ and at her death all should be his.” In case the plaintiff did not approve of this, she asks him to let it remain for one or two years, and that then she will repay him. The plaintiff received this letter, and made no answer to it. It is fair to presume that the plaintiff was willing to let the sum of $400 remain in the house for the benefit of his sister, according to her request.

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 1865. Thomas died in 1885. During twenty years the plaintiff has been silent. In the mean time, the defendant knew of the original wrong taking of the $400, and that the plaintiff had been informed of it, and that he had full knowledge of the contents of the will, and of the further fact that the defendant had lent $200 to his sister Mary upon the purchase of the house. The defendant, through the silence of the plaintiff, was led to believe that he acquiesced in the disposition of the estate by the will of Mary. He was induced to believe that it was not necessary for him to press his claim as a creditor against the estate of Mary. He relied upon the will, and, according to its terms, soon after the death of Mary, paid the expenses of her last sickness and funeral. We think that the silence of the plaintiff, after he had knowledge of the provisions of the will of Mary O’Riley, is decisive. Plymouth v. Russell Mills, 7 Allen, 438, 444. By his own loches, the plaintiff has deprived himself of any right or benefit which he might have had, if he had exercised proper diligence. His silence in relation to the will, after he had been informed of its provisions regarding himself and the defendant, induced the defendant to believe that the plaintiff fully acquiesced in its provisions. It is now too late to set up any claim he may have had to the estate, if in season he had insisted upon it.

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.