Winchester v. Holmes

138 Mass. 540, 1885 Mass. LEXIS 249

• Court: Massachusetts Supreme Judicial Court
• Decided: February 27, 1885
• Status: Published

Opinion

Field, J.

The principles which govern this case were considered in Holmes v. Winchester, 135 Mass. 299. It is suggested that the case discloses fraud on the part of George 0. Winchester, whereby he obtained from his wife the release of dower in the land conveyed in mortgage, and then refused to convey to her, according to his promise, the property described in the bill. There is no allegation of fraud in the bill, but only an allegation that George 0. Winchester has neglected to perform his promise. Neither does the master’s report nor the evidence show fraud. It was plainly no part of the promise that the conveyance of the property should be contemporaneous with the release of dower. The plaintiff executed the release of dower relying upon the promise of her husband that he would some time in the future convey certain property to her, and he has neglected to do this.

The plaintiff also contends that, if the bill cannot be maintained for a conveyance of the property, it can be maintained “ to compel the assignees to make reimbursement to her, for the value of the dower, out of her husband’s estate.” Whether the plaintiff has a provable claim in insolvency against her husband’s estate we cannot decide in this suit. If the plaintiff has no right to any specific property, or to the proceeds of any specific property, in the hands of the assignees, we cannot in equity order them to pay money to her out of the assets of her husband’s estate in performance of his promise to her made long before the proceedings in insolvency. Bill dismissed: