McDonagh v. Mulligan

• Decision Date: 27 November 1940
• Citation: 307 Mass. 464,30 N.E.2d 385
• Parties: McDONAGH v. MULLIGAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

307 Mass. 464

30 N.E.2d 385

McDONAGH

v.MULLIGAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Nov. 27, 1940.

Proceeding between Margaret McDonagh and James F. Mulligan and others arising when Margaret McDonagh, subsequent to rendition of decrees authorizing executors named in the will of Frank J. Reddican to adjust controversy arising concerning probate of will and codicil and allowing those instruments as his will to be administered in accordance with agreement of compromise, appeared for the first time and claimed appeals from those decrees. From decrees dismissing Margaret McDonagh's appeals and denying her petition to revoke the decrees authorizing adjustment of controversy and allowing will, Margaret McDonagh appeals.

Appeals from decrees confirming the compromise agreement and allowing the will of the testator, but to be administered in accordance with its terms, waived. Decree denying petition to revoke those decrees affirmed.Appeal from Probate Court, Suffolk County; Prest, Judge.

Argued before FIELD, C. J., and DONAHUE, DOLAN, COX, and RONAN, JJ.

F. Adams and G. T. O'Hara, both of Boston, for petitioner McDonagh.

J. F. Mulligan, N. C. Nash, Jr., and J. D. Assaf, all of Boston, for Higgins and others.

DOLAN, Justice.

These cases come before us on the appeals of the petitioner in the first case from decrees entered in the Probate Court, (1) dismissing her appeals from decrees authorizing the executors named in the will of Frank J. Reddican to adjust the controversy that had arisen concerning the probate of certain instruments, purporting to be his will and codicil thereto, in accordance with the terms of a written agreement of compromise; (2) allowing those instruments as his will but to be administered in accordance with the agreement of compromise; and (3) denying and dismissing her petition to revoke those decrees.

The testator died on July 25, 1939, leaving as his heirs at law, according to the recitals in the petition for probate, fourteen first cousins of whom the petitioner, a resident of Ireland, is one. An order of notice was issued on the petition for probate returnable on September 14, 1939. The Thirty-fifth article of the will provides as follows: ‘I have intentionally omitted any and all of my relatives and heirs-at-law who live in Ireland.’ Certain of the testator's heirs, and certain persons named as legatees in a prior will, appeared to contest the petition for probate. On December 1, 1939, the judge allowed a petition of the executors for authority to adjust the contest of the will in accordance with the terms of a written agreement of compromise, to which the executors, all the contestants, and the residuary legatees and devisees were parties. On December 4, 1939, the judge entered a decree allowing the instruments presented for probate but to be administered in accordance with the terms of the agreement of compromise. On December 23, 1939, the present petitioner, hereinafter referred to as the appellant, appeared for the first time and claimed appeals from the decrees just referred to, and on the same day also filed a petition for their revocation. The disposition of these appeals and of the petition for revocation has already been set forth.

The sole contention of the petitioner is that the judge had no jurisdiction under the governing statute, G. L. (Ter. Ed.) c. 204, § 15, to authorize the adjustment of the controversy arising out of the petition for probate in accordance with the agreement since all those ‘entitled to the estate of the deceased under the laws regulating the descent and distribution of intestate estates,’ that is all the heirs at law of the testator, were not parties to the agreement. If the judge was without jurisdiction to authorize the adjustment of the controversy in accordance with the terms of the agreement, it would follow that the decree allowing the will ‘purporting to go on the footing of a compromise, falls of itself with the compromise. See Abbott v. Gaskins, 181 Mass. [501], 63 N.E. 933.’ Bartlett v. Slater, 182 Mass. 208, 211, 65 N.E. 73, 74.

G. L. (Ter. Ed.) c. 204, § 15, provides as follows: ‘The supreme judicial court or the probate court may authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the petitioners for administration 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 laws regulating the descent and distribution of intestate estates, to which arbitration or compromise the persons named as executors, or the petitioners for administration 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 intestate, shall be parties.’

While it is true that, in the recitals of § 15 descriptive of the character of controversy that may be adjusted in accordance with its provisions, the controversy is denominated as one between the persons who claim as legatees or devisees under the will and the persons entitled to the estate of the deceased under the laws regulating the descent and distribution of intestate estates, yet, in defining those who are necessary parties to the compromise, the statute specifically designates ‘those claiming as devisees or legatees whose interests will in the opinion of the court be affected by the proposed * * * compromise, and those claiming the estate as intestate.’ It does not prescribe as necessary parties those who would be entitled to the estate of the deceased had he died intestate, but rather those who claim the estate as intestate.

In the present case we think it must be held that the only persons claiming the estate of the deceased as intestate were those of his heirs who appeared and contested, all of whom were parties to the agreement of compromise. The adjustment of a controversy over the probate of a will is necessarily based upon a dispute, a contest, in the settlement of which those claiming as legatees and devisees whose interests will be affected by...