Starkey v. Kingsley
| Decision Date | 11 March 1898 |
| Citation | 39 A. 1017,69 N.H. 293 |
| Parties | STARKEY v. KINGSLEY. |
| Court | New Hampshire Supreme Court |
Assumpsit by Myra E. Starkey against Austin N. Kingsley. Heard on agreed facts. Case discharged.
Daniel P. Kingsley, of Springfield, Hampden county, Mass., died October 23, 1886, leaving a will, which was duly proved in that county, and by which he gave to the executor a portion of his estate, in trust, to be paid, under certain circumstances, to his legal heirs. July 3, 1895, the circumstances having occurred, and the executor's account having been settled, the probate court for the county, upon the petition of an heir, decreed that the balance in the executor's hands should be distributed in equal shares among the 10 persons named in the decree; it appearing that they were entitled thereto. Notice of the hearing upon the petition was given, in accordance with the order of the court, "to the heirs at law, next of kin, and all other persons interested in the estate," by publishing the citation once a week for three successive weeks in a Springfield newspaper, and by mailing a copy of it to all who were known. The plaintiff claims to be an heir, and entitled to the same share of the fund as each of the other heirs. She resided in Connecticut, and had no knowledge of the will or any of the proceedings in the probate court relating to the estate until after the decree of distribution had been made and complied with. No copy of the citation was mailed to her, because it was not known that she was, or claimed to be, an heir. The sum decreed to the defendant was $2,000, and was paid October 5, 1895. The plaintiff demanded of him the one-eleventh of this sum March 1, 1896, and seeks to recover it in this action. The laws of Massachusetts relating to the questions to be considered are a part of the case.
Clarke C. Fitts and John T. Abbott, for plaintiff.
Batchelder & Faulkner, for defendant.
The $2,000 in the defendant's possession was paid to him in satisfaction of a decree of a Massachusetts probate court. The plaintiff's case is based on the supposition that this decree was erroneous. She proposed to show that she was an heir of the testator, making 11 heirs, instead of 10, and, consequently, that the defendant was entitled to only $1,818.18, and so has $181.82 in his possession, which in equity and good conscience belongs to her. The question is whether the law will permit her to attack the decree in this way. The Massachusetts act of March 16, 1895 (chapter 134), gave the probate court jurisdiction of the subject-matter. The first section is as follows: "Whenever, by the provisions of a will, a legacy is to distributed in whole or in part among the heirs or next of kin of any person, * * * the probate court, on the application of any person interested, after such notice as it may order, may order distribution to be made to such individual or individuals as according to the will seem to be entitled to the legacy, and such order of distribution shall protect the executor or administrator obeying the same as fully as an order of distribution in an intestate estate." The object of the proceeding thus provided is to establish the title to the fund in the possession of an executor or...
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Hollis v. Tilton
...v. Courser, 29 N.H. 170, 173. An administrator's or executor's account has also been held to be of the same character. Starkey v. Kingsley, 69 N.H. 293, 39 A. 1017. But there is a practical difference between an account of a guardian and one in settlement and distribution of an estate. In t......
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Knight v. Rollings
...reasonably chargeable with notice of all facts concerning their rights that they would learn upon diligent inquiry. Starkey v. Kingsley, 69 N. H. 293, 294, 39 Atl. 1017; Johnes v. Jackson, 67 Conn. 81, 34 Atl. 709. The plaintiffs were not entitled as of right to notice of the pendency of th......
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Langley v. Langley
...v. Railway, 80 N. H. 185, 189, 115 A. 803, 805. The decree of a probate court is in the nature of a proceeding in rem (Starkey v. Kingsley, 69 N. H. 293, 294, 39 A. 1017), and like a common-law judgment cannot be impeached collaterally except for lack of jurisdiction (Scammon v. Pearson, 79......
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Gault's Estate, In re, 7490
...distribution to the decedent's known heirs-at-law in accordance with the statutes governing descent and distribution. Starkey v. Kingsley, 69 N.H. 293, 39 A. 1017 (1897); L. Hoyt, Probate Practice 254 RSA 561:1, IV at the time of Elizabeth B. Gault's death provided that where there is no su......