Devise and Legacy, What interest passes. Executor and Administrator. Equity Jurisdiction, In suit against executor or administrator, Adequate remedy in Probate Court.
Where a testator named his wife as the sole executrix of his will and devised and bequeathed to her the whole of his estate "to be used and enjoyed by her for her comfort and support during her natural life" with a provision that any part of his estate "not used by her for her comfort and support during her natural life," after the payment of two small legacies, should go in equal shares to certain nephews and a niece, it was held, that the testator's widow took only a beneficial interest for life with a limited power of disposal, and that therefore the bequest over was valid.
In this Commonwealth a court of equity will not take jurisdiction of a suit against an executor or administrator, who has not fully administered the estate of his testator or intestate, for an accounting, where the objection is seasonably taken and afterwards insisted on that there is a plain, adequate and complete remedy in the Probate Court.
HAMMOND, J.
By the terms of the will the widow took simply a life estate with a limited power of disposal so far as necessary for her personal and physical comfort and well being, but for no other purpose. Chase v. Ladd, 153 Mass. 126. Kent v. Morrison, 153 Mass. 137. Collins v. Wickwire, 162 Mass. 143. Price v. Bassett, 168 Mass. 598. Stocker v. Foster, 178 Mass. 591. Dana v. Dana, 185 Mass. 156, and cases cited. The bequest over was therefore valid.
As executrix of her husband's estate the widow was bound to account to the Probate Court. She was chargeable with what she received and was to be credited with what she paid out lawfully to creditors and for expenses of administration including a reasonable compensation for her own services as executrix, and then she was to hold the balance for her use for life under the trust named in the will, and whatever was left was to be disposed of in accordance with the will. The Probate Court was judicially to determine on the debtor side what property she should be charged with, and on the creditor side what allowance should be made to her. And the questions as to how much she received, how much she paid out, and for what, including the sum paid out under the trust, and as to what the balance was for which she or her estate was finally chargeable, were for the determination of that court in the first instance, to be settled in an accounting by her or by her personal representative. Under our system of practice equity will not take jurisdiction of such a case where the objection that there is a plain, adequate and complete remedy in the Probate Court is seasonably taken and is not waived. Sever v. Russell, 4 Cush. 513. Ammidown v. Kinsey, 144 Mass. 587. Green v. Gaskill, 175 Mass. 265, and cases cited. In Chase v. Ladd, 153 Mass. 126, cited by the plaintiffs, the point as to jurisdiction was not taken. In the case at bar there has been no final account settled. The point was seasonably taken and has been constantly insisted upon.
Bill dismissed without costs to either party.