Elder v. Adams

• Decision Date: 03 January 1902
• Citation: 62 N.E. 373,180 Mass. 303
• Parties: ELDER v. ADAMS et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

180 Mass. 303

62 N.E. 373

ELDER v. ADAMS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1902

COUNSEL

John F. Cronan, for respondents Elizabeth A. Ulmar, Aquila Adams and Isaac Adams.

Chas F. Donnelly and Arthur E. Gage, for respondent Carney Hospital.

Daniel V. McIsaac, for other respondents.

OPINION

KNOWLTON, J.

This is a petition by an executor for leave to compromise a controversy as to the validity of a will. Certain minor children, by their guardian ad litem appointed by this court, signed the agreement of compromise; but their statutory guardian and two other parties refused to sign it in its amended form, and objected and excepted to the decision of the court. The other two parties have waived their exceptions, and the question before us arises on a motion to dismiss the exceptions of the statutory guardian on the ground that she has no standing to object, in view of the agreement of the guardian ad litem.

The last clause of Pub. St. c. 139, § 29, gives a statutory guardian a right to represent his ward in all legal suits and proceedings 'unless another person is appointed for that purpose as guardian ad litem or next friend.' Here is a plain implication that if a guardian ad litem is appointed there is no such right. Section 43 of the same chapter expressly reserves to the guardian ad litem power paramount to that of the statutory guardian to represent a minor in suits in court. The statute of 1896 (c. 456) adds emphasis to the sections above cited. See Davenport v. Davenport, 5 Allen, 464; Burke v. Burke, 170 Mass. 499, 49 N.E. 753; Taylor v. Lovering, 171 Mass. 303, 50 N.E. 612. We are therefore of opinion that the guardian ad litem properly represents the minors in this suit, and that their statutory guardian has no standing to take or prosecute exceptions, against the will and in violation of the agreement of the guardian ad litem. The exceptions must, therefore, be dismissed, and the case left for further proceedings before a single justice.

But we do not intimate that a decree should be entered for the petitioners on the record as it now stands, This proceeding, in which the court upon the agreement of parties interested can modify the will of the testator, is anomalous, and rests upon the statutes. Pub. St. c. 142, §§ 13, 14, 16; St. 1889, c. 266. The court has no jurisdiction unless the requirements of the statute are strictly complied with. The compromise must be in writing. The executor or administrator with the will annexed, those claiming as devisees or legatees, whose interests will be affected by the proposed compromise, and those claiming the estate as intestate, must all be parties to it.

This case was argued on the merits as well as on the motion to dismiss, and a part of the argument addressed to us may be stated, in substance, as follows: The agreement of compromise is treated by the statute as a single and entire agreement, to the whole of which the necessary persons must be parties. To the agreement, in the form in which it was finally presented to the court by amendment in this case, two of the persons necessary as parties to give it validity never agreed. They...