Neafsey v. Chincholo

• Decision Date: 16 September 1916
• Citation: 113 N.E. 651,225 Mass. 12
• Parties: NEAFSEY v. CHINCHOLO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 12

113 N.E. 651

NEAFSEY

v.CHINCHOLO.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 16, 1916.

Report from Supreme Judicial Court, Suffolk County.

Petition by Catherine Neafsey, guardian, against Josephine Chincholo, for revocation of a decree of the probate court. That court dismissed the petition, and petitioner appealed to the Supreme Judicial Court, a single justice of which made findings and reported the case to the full court.

Report discharged, case to stand for further hearing and trial.

Whipple, Sears & Ogden, Hugh W. Ogden, and Ralph E. Tibbetts, all of Boston, for appellant.

Addison R. Pike, of Boston, for respondent.

DE COURCY, J.

Peter Gaffney died October 28, 1907, leaving an instrument in writing purporting to be his last will, and as his only heirs at law and next of kin, his granddaughters Eleanor Fornier and Lorraine Fornier. The first paragraph of said instrument is as follows:

‘First: I give and devise unto my beloved granddaughter Eleanor Fornier of said Boston for and during the term of her natural life, with the use and income thereof, the real estate together with the buildings thereon now numbered forty (40) Billerica street in said Boston, and to my beloved granddaughter Lorraine Fornier for and during her natural life, with the use and income thereof, the real estate together with the buildings thereon now numbered twenty (20) on said Billerica street, and upon the death of either of said granddaughters I give and devise unto the other or survivor the premises hereby devised to such deceasing granddaughter for and during the term of her natural life. After the decease of both of my said granddaughters I give and devise both of said properties to my then legal heirs at law and their heirs and assigns forever, as tenants in common.’

Objections to the allowance of said instrument were filed by some of the beneficiaries named therein, and an agreement for compromise was made and was confirmed by the probate court. The instrument was allowed as the last will of Peter Gaffney, to be executed in accordance with the compromise, by decrees filed April 17, 1908. By the terms of the compromise agreement the above first paragraph of the will was stricken out, and the property therein dealt with (20 and 40 Billerica street) was devised to Eleanor and Lorraine Fornier in fee under a newly made residuary devise; and thereby the remainder ‘after the decease of both of my said granddaughters * * * to my then legal heirs at law’ was obliterated.

Eleanor Fornier, who survived her sister Lorraine, died November 28, 1909, apparently leaving as her only heir and next of kin her father Thomas J. Fornier. Margaret Jordan, a grandniece, John Jordan and William Jordan, grandnephews, thereupon became heirs at law of the testator, Peter Gaffney; and the contingent interest devised to them by his will as written became absolute. This petition was brought in 1911 for the revocation of the decree of the probate court confirming the said compromise agreement and approving the will as that of Peter Gaffney, to be executed in accordance with the terms of that agreement. It is to be noted that the petition should have been brought in the name of the minors, and not in the name of the guardian; but as no objection was made on that score we consider the case as if brought in the name of the minors by their guardian.

1. The first contention of the minors (to whom we shall refer as the petitioners) is that the compromise agreement was not signed by any guardian ad litem representing their future contingent interest, and that consequently it could not affect their rights in the two parcels of land which were devised to them in the contingency that has happened. As matter of fact the agreement of compromise set forth in the record does not purport to be executed by any one representing the petitioners, although it is signed by guardians ad litem representing the minors Mary McDermott, Eleanor Fornier and Lorraine Fornier. Assuming, then, that it was not signed by a guardian ad litem to represent the contingent interest of these petitioners, was the compromise agreement thereby rendered ineffective?

The statute (R. L. c. 148, § 15) which authorizes the compromise of controversies as to wills provides that the parties to such agreement shall be ‘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 intestate.’ By section 14 (originally St. 1861, c. 174, § 1), which deals with the compromise of controversies between different claimants to the estate in the hands of an executor, administrator, guardian or trustee, it is provided that the parties to the compromise shall be such executor, etc., ‘and all other parties in being who claim an interest in such estate.’ In Clarke v. Cordis, 4 Allen, 466, which involved the construction of this latter statute, it was decided that parties in being having only future contingent interests, need not be parties to the agreement of compromise. The court, speaking by Bigelow, C. J., among other things, said:

‘It was certainly never intended that persons whose interest was remote and contingent and might never become vested, and who had no immediate right of enjoyment, should be called in to take part in the proceedings. Such a construction would defeat the great object of the statute. In many cases it would be impracticable on account of the number of persons who might be contingently interested, to make them parties.’

It seems to us that in this respect no distinction should be made between the construction of section 14 and section 15; and that in proceedings under section 15 the signature of a guardian ad litem for the petitioners, who had only a future contingent interest, was not essential to the validity of the compromise agreement. See Bartlett v. Slater, 182 Mass. 208, 209, 65 N. E. 73.

2. It is settled that in this anomalous statutory proceeding to determine a controversy over the allowance of a will, the jurisdiction of the probate court is entirely dependent upon the agreement of the parties, acting in strict compliance with the requirements of the statute. Elder v. Adams, 180 Mass. 303, 306, 62 N. E. 373;Sherman v. Warren, 211 Mass. 288, 97 N. E. 892, Ann. Cas. 1913B, 614. The rights of the parties after such a settlement are determined by that agreement and the decree confirming it, and not by the will as written; they are contractual and not testamentary rights. Blount v. Wheeler, 199 Mass. 330, 339, 85 N. E. 477,17 L. R. A. (N. S.) 1036;Brandeis v. Atkins, 204 Mass. 471, 90 N. E. 861,26 L. R. A. (N. S.) 230. If all the parties are of age, and no future contingent interests are involved, the parties do not really need the assistance of the court. See Abbott v. Gaskins, 181 Mass. 501, 506, 63 N. E. 933. Where there are such outstanding interests under the will, whose owners cannot execute a...