Allen v. Hunt

• Decision Date: 27 January 1913
• Citation: 213 Mass. 276,100 N.E. 552
• Parties: ALLEN et al. v. HUNT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

213 Mass. 276

100 N.E. 552

ALLEN et al. v. HUNT et al.

Supreme Judicial Court of Massachusetts, Essex.

January 27, 1913

COUNSEL

Chas A.

Russell of Gloucester, for appellant Hunt.

Wm. A Pew, of Gloucester, for appellees.

OPINION

HAMMOND J.

By the terms of the will the widow took simply a life estate with a limited power of disposal so far as necessary for her personal and physical comfort and well-being, but for no other purpose. Chase v. Ladd, 153 Mass. 126, 26 N.E 429, 25 Am. St. Rep. 614; Kent v. Morrison, 153 Mass. 137, 26 N.E. 427, 10 L. R. A. 756, 25 Am. St. Rep. 616; Collins v. Wickwire, 162 Mass. 143, 38 N.E. 365; Price v. Bassett, 168 Mass. 598, 47 N.E. 243; Stocker v. Foster, 178 Mass. 591, 60 N.E. 407; Dana v. Dana, 185 Mass. 156, 70 N.E. 49, and cases cited. The devise over was therefore valid.

As executrix of her husband's estate the widow was bound to account to the probate court. She was chargeable with what she received and was to be credited with what she paid out lawfully to creditors and for expenses of administration including a reasonable compensation for her own services as executrix, and then she was to hold the balance for her use for life under the trust named in the will, and whatever was left was to be disposed of in accordance with the will. The probate court was judicially to determine on the debtor side what property she should be charged with, and on the creditor side what allowance should be made to her. And the questions as to how much she received, how much she paid out, and for what, including the sum paid out under the trust, and as to what the balance was for which she or her estate was finally chargeable, were for the determination of that court in the first instance, to be settled in an accounting by her or by her personal representative.

Under our system of practice equity will not take jurisdiction of such a case where the objection that there is a plain adequate and complete remedy in the probate court is seasonably taken and is not waived. Sever v. Russell, 4 Cush. 513, 50 Am. Dec. 811; Ammidown v. Kinsey, 144 Mass. 587, 12 N.E. 365; Green v. Gaskill, 175 Mass. 265, 56 N.E. 560, and cases cited. In Chase v. Ladd, 153 Mass. 126, 26 N.E. 429, 25 Am. St. Rep. 614, cited by the plaintiff, the point as to jurisdiction was not taken. In the case at bar there has been no final account settled. The point was seasonably taken and has been constantly...