Burtman v. Butman

• Decision Date: 02 July 1947
• Citation: 54 A.2d 367
• Parties: BURTMAN v. BUTMAN et al.
• Court: New Hampshire Supreme Court

54 A.2d 367

BURTMAN

v.BUTMAN et al.

Supreme Court of New Hampshire.

July 2, 1947.

COPYRIGHT MATERIAL OMITTED.

Transferred from Superior Court, Strafford County; Leahy, Judge.

Bill in equity by Avelyn Frey Burtman against J. S. Butman and another, individually, and as surviving executors of the will of Abraham Burtman, deceased, for specific performance of an agreement between plaintiff and the defendants, by their attorneys, for the compromise of certain claims and actions pending between the parties. The defendants filed a demurrer to the bill in equity and the case was transferred without ruling.

Demurrer overruled.

Bill in Equity, for specific performance of an agreement between plaintiff and the defendants, by their attorneys, for the compromise of certain claims and actions pending between the parties. The defendants filed a demurrer to the plaintiff's bill in equity setting forth various reasons why the petition should not be granted, which will be discussed in detail in the opinion. The plaintiff is the widow of the defendants' testate who filed in the Probate Court a waiver of her husband's will electing to take her distributive share as provided in R.L. c. 359. As appears from the pleadings, the plaintiff had appealed from an order of the Probate Court granting a license to the defendants to sell certain securities in the estate at prices which the plaintiff claimed inadequate. The defendants, the surviving executors under the will of Abraham Burtman, contended that the plaintiff's appeal was precluded by an antenuptial agreement between her husband and herself. The defendants also claimed certain furs and jewelry given to the plaintiff by her husband which had not been paid for at the time of his death.

As stated in the bill in equity, after extended negotiations between the parties and their attorneys, the parties, by their attorneys, agreed to settle all claims and disputes by the following mutual promises:

‘The defendants agreed:

‘(1) To pay plaintiff the sum of $225,000.

‘(2) To execute and deliver to her a bill of sale to a certain 1938 Packard Club Sedan.

‘(3) To pay outstanding bills for the furs and jewelry referred to and to save the plaintiff harmless from any claim in reference thereto.

‘The plaintiff agreed:

‘(1) To accept the sum of $225,000 and the Packard Club Sedan in full satisfaction of her claims against the estate of her husband and her right to a distributive share in his estate.

‘(2) To dismiss her appeal pending in the Superior Court, Strafford County.

‘(3) To execute and deliver to the defendants all papers and instruments necessary to accomplish the settlement agreement.’

The petition further alleges that the plaintiff has no adequate remedy at law and the defendants have refused to perform the compromise agreement.

The defendant Burns is an attorney, and the defendants were also represented by additional counsel in respect to the compromise agreement.

The questions raised by the bill in equity and the demurrer thereto, was transferred without ruling by LEAHY, J. McLane, Davis & Carleton and Stanley M. Brown, and S. M. Brown, all of Manchester, for plaintiff.

Hughes & Burns, of Dover, H. Thornton Lorimer, of Concord, and Stanley M. Burns, of Dover, for defendants.

KENISON, Judge.

The demurrer admits as true the facts properly pleaded in the petition for specific performance. Glover v. Baker, 76 N.H. 393, 406, 83 A. 916; Forest Products Co. v. Publishers' Paper Company, 75 N.H. 493, 76 A. 642.

The Attorney General was not a party to the agreement and his approval was not obtained. It is clear that the Attorney General is an indispensable party, both at common law and by statute, in the enforcement and supervision of charitable trusts. Souhegan Nat. Bank v. Kenison, 92 N.H. 117, 26 A.2d 26; Akscyn v. Second Nat. Bank, 78 N.H. 196, 98 A. 519. There is nothing contained in the statute creating a register of public trusts in the Attorney General's office (Laws 1943, c. 181, as amended by Laws 1945, c. 92), which requires his approval of claims for or against the estate even though the compromise of such claims may indirectly affect a residuary charitable trust created therein. Whether the Attorney General should be notified concerning such claims involves questions of policy and procedure on which the Legislature has remained silent. If notice to the Attorney General and his approval are necessary, it will require legislative authority therefor. We know of no decision which requires the Attorney General's approval of all Probate proceedings or the actions of executors in administering the estate before the charitable trust is in existence. In a jurisdiction where broad powers already exist in the Attorney General over the administration of charitable trusts, it was thought necessary to have additional statutory procedure to require notice of Probate proceedings which might affect charities. 30 Mass. L.Q. (No. 1) pgs. 22-34 (1945).

If this was a ‘typical situation in which the Attorney General should and probably will receive notice * * *.’ (Note, ‘State Supervision of the Administration of Charitable Trusts,’ 47 Col.L.R. 659, 662 (1947), no such notice is required in the absence of legislation so providing. The demurrer is overruled insofar as it relies on the position that the Attorney General was an indispensable party entitled to notice.

There appears to be some support for defendants' contention that the compromise agreement cannot be specifically enforced since the bill fails to allege that the agreement was in writing, filed in court or entered upon the docket. Fernald v. Ladd, 4 N.H. 370; Vaughan v. Morrison, 55 N.H. 580, 590. However, these cases must be read in connection with Barber v. George R. Jones Shoe Company, 80 N.H. 507, 513, 120 A. 80, 84: “We entertain no doubt that an attorney may be ordered to perform a contract made by him in court, in relation to an action, and that the performance of the order may be enforced by an attachment.' * * * While it is also said that such proceeding will not be taken, except in a clear case, and that the court would not be disposed to take it on a mere oral agreement (Fernald v. Ladd, supra; Vaughan v. Morrison, 55 N.H. 580), yet the existence of the power to act is clearly recognized. The statement as to oral agreements is a mere counsel of caution. The case should be clearly made out. * * * The law is not so impotent that oral deceit can be practiced with impunity, nor is such wrong of a preferred class, so that the aggrieved party must be put to his independent suit to recover what could be obtained immediately if the deceit had been by writing.' It does not appear that the agreement in the instant case was made in open court as in the Barber case but this fact alone should not prevent its enforcement if made in good faith and it is otherwise equitable. To enforce such mutual promises of traders in the market place and attorneys in open court and not to enforce them when made by attorneys...