Harrington v. Cousins ( 1918 )

De Courcy, J.

The plaintiff as administrator of the estate of his mother, Sarah L. Harrington, seeks to recover from his sister, the defendant, certain sums of money which he claims she has “received and borrowed ” from his intestate. The father of these parties died in 1879 and left to their mother his personal property and a life interest in his farm at Watertown. In 1886 the defendant was married and moved to Minneapolis, where she has resided since, with the exception of six years from 1897 to 1903 when she lived in Watertown. For twenty-six years after her marriage, her mother dwelt with her. Mrs. Harrington came to Boston in May, 1912; she remained with her sister Mrs. Bemis until March, 1913, and stayed at the farm in Watertown (which has been the plaintiff’s home since 1886) until July 13, 1913. She then was removed to the Westborough State Hospital, where she died on February 6, 1914, at the age of eighty-two years.

1. The first item of the bill of particulars is, “to cash, $2,000.” The evidence shows that the $2,000 referred to was a mortgage loan raised by Mrs. Harrington on a lot of land in Minneapolis owned by her, and was expended in the erection of a house thereon. The money was not lent to nor received by the defendant; on the contrary she and her husband advanced an additional $1,000 to complete the building. If there is any question as to the validity of the subsequent conveyance of this land to the defendant (in 1910) it is not open in this action.

2. The second and third items (cash $1,060.07 and $497.13) relate to money of the intestate which was drawn from banks in Massachusetts in January, 1911, and forwarded to Mr. Deutch, her attorney in Minneapolis. There is not the slightest evidence that Mr. Deutch paid any of it to or for the benefit of the defendant. Even assuming that the $300, which was paid by Mrs. Harrington to the defendant on account of board, came from these funds, it is not contended that she is under any obligation to repay that sum.

3. The plaintiff has argued a claim for $1,500 which was not included in his bill of particulars but was considered at the trial. It appears that when the defendant was building a residence at Minneapolis in 1887 she received a loan of that amount from her mother. But the uncontradicted evidence is that, after receiving interest on this loan for ten'years, Mrs. Harrington made a gift of the money to the defendant, and released the mortgage which was given as security.

Evidence bearing upon the weakening of the intestate’s mental capacity especially after May, 1912, and of alleged undue influence, seems to have been admitted without objection. The only transaction to which it could be relevant was the gift of said note and mortgage of $1,500. It is enough to say that the evidence would not warrant a finding that this gift was invalid by reason of mental incapacity of Mrs. Harrington, or of any undue influence exercised by her daughter. Apparently when the papers were executed, the defendant was in Minneapolis and her mother was at Winthrop, Massachusetts, acting willingly, with much deliberation, and aided by the advice of her attorney.

It is unnecessary to consider in detail the plaintiff’s requests for instructions, as there was no evidence to warrant a verdict in his favor, and the trial judge rightly directed a verdict for the defendant.

Exceptions overruled.