Compromise, Of controversy as to will. Equity Jurisdiction, To enforce compromise agreement.
It seems, that a bill in equity cannot be maintained to compel one who is named as executor and trustee in an alleged will, the proof of which is pending in the Probate Court, to administer the property of the estate of the alleged testator in accordance with an agreement of compromise, because unless the will is allowed there can be no compromise concerning it.
In a proceeding under R.L.c. 148, §§ 14, 15, asking the Supreme Judicial Court to authorize a compromise of a controversy as to the estate of a testator, where a certain person is named in the will as executor and trustee and by the terms of the proposed compromise is not to be made trustee, such person is a necessary party to the agreement of compromise.
Although, apart from the provisions of R.L.c. 148, §§ 14-18, this court has jurisdiction in equity to enforce a compromise agreement in regard to property acquired under a will between parties who are sui juris and where no contingent interests are affected, this jurisdiction does not extend to the enforcement of an alleged compromise agreement affecting future contingent interests.
MORTON, J.
This is a bill praying that the New England Trust Company be authorized and directed as executor and trustee under the will of Benjamin Parker, late of Boston, to adjust a controversy in regard to said will according to the terms of a compromise agreement which has been entered into between the next of kin and heirs at law of said Parker. The plaintiff is a brother of the testator. The will, though offered for proof in the Probate Court for the county of Suffolk, has not yet been allowed, and a petition for its allowance is now pending in that court. Non constat that the will may ever be allowed. And, if the will should not be allowed, there would be nothing to compromise in respect thereto, and the bill would seem therefore to be premature.
Still further, the statute provides, if this is to be regarded as a proceeding under the statute, that in regard to a 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 . . . compromise, and those claiming the estate as intestate, shall be parties." R.L.c. 148, § 15. In the present case the New England Trust Company, which is named as executor and trustee and which by the terms of the proposed compromise is to be eliminated as trustee, is not a party to the compromise, as it is expressly required by the statute that it should be.
The plaintiff relies upon Blount v. Wheeler, 199 Mass. 330. But in that case there were not, as in this, future contingent interests to be affected by the proposed compromise. There is no doubt that since the statute as well as before, the court has jurisdiction in equity to enforce a compromise agreement as an agreement voluntarily entered into where all the parties are sui juris and no contingent interests will be affected. Abbott v. Gaskins, 181 Mass. 501. But this is not such a case.
Decree affirmed with costs.