Bartlett v. Slater

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: HOLMES, C.J.
• Citation: Bartlett v. Slater, 182 Mass. 208, 65 N.E. 73 (Mass. 1902)
• Decision Date: 30 October 1902
• Parties: BARTLETT et al. v. SLATER.

182 Mass. 208

65 N.E. 73

BARTLETT et al. v. SLATER.

Supreme Judicial Court of Massachusetts, Worcester.

October 30, 1902

COUNSEL

Samuel Hoar, T. H. Gage, Jr., and Frank Dresser, for petitioners.

Sherman L. Whipple, Wm. R. Sears, and Robert Homans, for respondent.

OPINION

HOLMES, C.J.

These are two cases, argued together. One is a bill for the specific performance of an agreement of compromise confirmed by a decree of this court under Rev. Laws, c. 148, § 15, the other an appeal from a decree of the Probate Court establishing the will in question subject to the terms of the same compromise. The defendant and appellant is the widow of the testator. The ground of defence in the first case and of appeal in the second is that the Probate Court, more than two years before, already had entered a decree establishing the will, which stood unrevoked, and that therefore the compromise proceedings in this court were without jurisdiction and the Probate Court had no power to enter a new decree. The answer made to this is that the former decree of the Probate Court allowed the will in pursuance of a former compromise and a decree of the Probate Court sitting in equity, and allowed it in the form usual under such circumstances, 'to be executed according to the terms of' the compromise and decree; that since that date it has been decided that the Probate Court had no statutory power to deal with such compromises (Abbott v Gaskins, 181 Mass. 501, 63 N.E. 933); that thereupon a new compromise was made and the new probate decree entered with the consent of the defendant and appellant. The case was reserved for the consideration of the full court by a single justice.

We are of opinion that the specific performance should be ordered and that the decree of the Probate Court should be affirmed. We confess that we are somewhat at a loss to see on what ground the decree of this court sustaining the second agreement could be attacked collaterally, even if the first decree of the Probate Court establishing the will was in full force, and even if a denial of its validity and a subsequent waiver by the widow of the provisions of the will and a claim of her statutory rights did not raise a controversy within section 15. It is true that the Probate Court's decree on the first compromise was void, because, under the decision referred to, on the face of the petition before it, it had no authority to enter into the inquiry whether there was a controversy or to touch the case presented by the allegations. It had nothing to do with the subject-matter. But this court had the right to enter into that inquiry, and when all the parties came before it and agreed that there was something to compromise and thereupon the court entered a decree, that decree was not void, even if it was wrong. But in fact we think that none of the grounds upon which it is said to be wrong can be maintained. The objection that the agreement of compromise was not signed by the guardian ad litem of minors hardly needs mention in the view which we take. But if the statute requires his signature (sections 17, 18) which we are far from deciding, we do not perceive why an indorsement, 'I approve of the foregoing compromise,' with his name and office, is not enough. We pass to the more serious objection urged on behalf of the widow in direct opposition to what she contended when the second compromise was made.

It is said that so much of the probate decree establishing the will as undertook to determine that it was to be executed according to the terms of the compromise was beyond the power of the Probate Court in that proceeding, and that the decree must stand simply as a decree establishing the will. Suppose that all this were true, so far that, for instance, a special administrator would be discharged if thereafter he handed over the property in his hands to the...