In re Ellis

• Decision Date: 12 July 1917
• Parties: In re ELLIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

228 Mass. 39

116 N.E. 956

In re ELLIS.

Supreme Judicial Court of Massachusetts, Hampden.

July 12, 1917.

Petition by Ralph W. Ellis, executor, for authority to compromise a controversy arising over the will of Everett H. Barney, deceased, against Charles E. Ladd and others. The will appointed three trustees, Walter P. Dodge, Theodore W. Lette, and Charles E. Ladd. Dodge refused to accept or qualify as trustee, and no trustees were appointed by the probate court. Petition dismissed, without costs and without prejudice.

Wm. H. Brooks and Elisha H. Brewster, both of Springfield, for petitioner.

Chas. H. Beckwith, City Sol., of Springfield, for city of Springfield.

Wm. H. McClintock, Edward A. McClintock, John F. Jennings, and David B. Hoar, all of Springfield, for respondents.

Whipple, Sears & Ogden, of Boston (Sherman L. Whipple, of Boston, Robt. A. Knight, of Springfield, and Alexander Lincoln and U. D. Garfield, both of Boston, of counsel), for Isabella A. B. Hunt.

RUGG, C. J.

This is a petition for authority to compromise a controversy respecting the probate of a will. Everett H. Barney died leaving two instruments in form a will and codicil, whereby most of a large estate was given to three trustees upon elaborate trusts chiefly for the benefit of a park in the city of Springfield. A controversy as to the allowance of the will and codicil arose between the heirs at law and the executor. That controversy has been composed by an agreement to which confessedly all those interested are parties, including the Attorney General as representing the public, except those appointed trustees by the will. The question presented on this record is whether such trustees are necessary parties to a proceeding under R. L. c. 148, § 15, asking the court to approve the compromise of such a controversy.

The purpose, operation and effect of that statute have been stated in several cases. Elder v. Adams, 180 Mass. 303, 62 N. E. 373;Abbott v. Gaskins, 181 Mass. 501, 63 N. E. 933;Hastings v. Nesmith, 188 Mass. 190, 74 N. E. 323;Brandeis v. Atkins, 204 Mass. 471, 90 N. E. 861,26 L. R. A. (N. S.) 230;Baxter v. Treas. and Recvr. Genl., 209 Mass. 459, 95 N. E. 854;Sherman v. Warren, 211 Mass. 288, 97 N. E. 892, Ann. Cas. 1913B, 614;Neafsey v. Chincholo, 225 Mass. 12, 15, 113 N. E. 651;Renewick v. Macomber, 225 Mass. 380, 384, 385, 114 N. E. 720. The effect of these decisions as applied to the facts here presented is that proceedings under the statute are anomalous and its terms must be strictly complied with or there is no jurisdiction in the court to approve the agreement. The agreement for compromise, even when approved by decree of the court, is not in any accurate sense a modification of the will. The will as an entirety and in all its parts is established and admitted to probate. The court does not undertake to admit to probate a part of the will and to refuse to allow another part. But the agreement whereby the heirs at law on the one side and the devisees and legatees on the other have modified their rights under the will, is made matter of public record, its validity is approved by the court, and the duty of carrying out its terms is placed on those executing the will. The ageement is not incorporated into the will. The will stands by itself. Although the practice is to insert a clause in the decree of the court to the effect that the estate is to be administered in accordance with the agreement, yet the rights of the parties so far as they rest upon the agreement are contractual and not testamentary. The concessions made on the one side and accepted on the other take effect, not because that is the will of the testator, but because that is the agreement of the parties. The changes wrought in the disposition of the property are not the result of changes in the will, but of concessions by the beneficiaries under the will to the heirs at law or among themselves as to the disposition to be made of the interest granted by the will. It is a change made, not in the expression of the will but in the volition of legatee or devisee as to what he is to do with the benefaction which he has received under the will. The Legislature has never undertaken to permit heirs at law and legatees to make a new will for a testator. There would be a certain anomaly in recognizing testamentary power and in providing at the same time that after the maker of the will had died and his testamentary power gone forever, his disposition might be entirely frustrated. That would be a quite different matter from facilitating the making of valid contracts by competent legatees and devisees as to what they will do with that which they may receive under a will, subject to the supervisory power of the court to see that such contracts are just and reasonable toward all interests whether in being or future contingent. Agreements of this nature are entirely valid outside of the statute. Their binding character as contracts has been recognized and enforced in equity both before and since the enactment of any statute authorizing courts to approve them. Leach v. Fobes, 11 Gray, 506, 71 Am. Dec. 732;Blount v. Wheeler, 199 Mass. 330, 85 N. E. 477,17 L. R. A. (N. S.) 1036.

The statute by its terms does not go to the extent of empowering the court or the parties to eliminate a trust without a proceeding to which the trustees are parties. Its words are:

The court has jurisdiction ‘to authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the administrator with such will annexed to adjust by arbitration or compromise any controversy between the persons who claim as devisees or legatees under such will and the persons entitled to the estate of the deceased under the statutes regulating the descent and distribution of intestate estate to which arbitration or compromise the persons named as executors, or the administrators with the will annexed as the case may be, those claiming as devisees or legatees whose interests will in the opinion of the court be affected by the proposed arbitration or compromise and those claiming the estate as...