Probate Court. Contract. Executor and Administrator. Evidence. The widow and all of the adult children of an intestate made an agreement in writing under seal for the settlement and distribution of his estate, by the terms of which the widow was to be appointed administratrix. A minor child of the intestate, although mentioned in the agreement, was in no way a party to it. The administratrix filed an inventory, to which no objection was made, and an account to which some of the heirs objected. There was a hearing on the account and it was allowed in a modified form. On appeal from the decree, it was held, that the agreement did not oust the Probate Court of its jurisdiction to settle the account.
A promise under seal is binding without consideration.
Where, under an agreement in writing between the widow of an intestate and all of his adult children, the widow has been appointed administratrix of his estate and, having settled the estate substantially in accordance with the terms of the agreement, has filed in the Probate Court an account stating the distribution of the property made by her, which is allowed as her final discharge under R.L.c. 150, § 20, and where on an appeal by some of the adult children of the intestate the decree allowing the account is confirmed, this decree will not be disturbed because of informalities in the account not affecting the rights of the appealing parties, and the account may be treated as if allowed after a formal decree of distribution.
An agreement in writing under seal was made between the widow and all of the adult children of an intestate by which the widow was to be appointed administratrix, was to receive a certain farm, live stock and farming implements of the intestate at a valuation stipulated in the agreement, and was to assume and pay certain notes made by one of the adult children and indorsed by the intestate. At the hearing of an appeal from a decree of the Probate Court allowing the account of the widow as administratrix, it having been shown that she had paid the notes assumed by her under the agreement, evidence, offered by the appellants to show that the value of the farm and personal property conveyed to and received by the widow under the agreement was underestimated as an inducement to her to assume the payment of the notes, was excluded. Held, that the evidence properly was excluded as irrelevant.
BRALEY, J.
Under the agreement between the widow and the adult heirs at law of Theodore C. Fletcher, which as between themselves was made for the purpose of settling and distributing his estate, it is expressly provided that, with their consent, she is to be appointed administratrix without giving sureties on her official bond. By reason of this provision the terms of settlement must be read in the light of the statute relating to administrators and their duties, which the parties were bound to know. In pursuance of this understanding her appointment followed, and by taking upon herself this trust she was required by R.L.c. 149, § 1, and c. 150, §§ 1 and 5, to file an inventory and render an account of her administration of the estate. It is to be noticed that if it had been the intention of the parties that beyond her formal appointment required in order to provide for the necessary transfer of personal property of which the intestate died possessed no further steps were to be taken, provision would have been made for a release from any liability upon her failure to file an inventory or render an account. If this liability could have been obviated by a proper release executed by the heirs who were of age, such an arrangement would have been impossible as to the minor daughter without the appointment of a probate guardian, upon whom on the face of the instrument the settlement never became binding. It must have been understood that she at least had the right to demand an accounting of her father's estate, and whatever favor should be extended by the courts to such an agreement, it is not sufficient to oust the Probate Court of its jurisdiction, which is exclusive over the settlement of the estates of deceased persons, and concerning which a court of equity will not take upon itself the duty of administration. Jennison v. Hapgood, 7 Pick. 1. Sever v. Russell, 4 Cush. 513. Leach v. Fobes, 11 Gray, 506. Cathaway v. Bowles, 136 Mass. 54, 55. Abbott v. Gaskins, 181 Mass. 501, 506.
The exceptions explicitly state that the petitioner upon her appointment filed an inventory to which no objection was made, and that the estate has been settled substantially in accordance with the terms of the agreement. Instead of ignoring the probate proceedings and resorting to a court of equity for specific performance on the ground that the agreement had not been carried out, the appellants elected to appear and contest the allowance of the account. We treat the appeal as properly before us.
Included in the indebtedness of the intestate was his liability on two promissory notes made by his son, the appellant Daniel C. Fletcher, which the widow individually was to assume and pay. Her promise being under seal a sufficient consideration was imported. Graham v. Middleby, 185 Mass. 349. It may be assumed that it was not the purpose to enforce this liability against Titcomb, who does not appear to have been related to the decedent, but that this part of the stipulation was merely an ineffective attempt to bind him in his official capacity when appointed probate guardian, while placing this personal obligation solely on the widow. Under the agreement as between the maker and herself, no doubt the petitioner assumed payment of the notes. Locke v. Homer, 131 Mass. 93, 109. But his contention, and that of his brother, the other appellant, is, that while this has been done, inasmuch as she now credits herself as administratrix with the amount paid for this purpose, their distributive shares are thus proportionately diminished.
An examination of the account reveals that it is made up upon a fundamentally wrong basis. The administratrix should have charged herself with the assets described in the inventory, and credited herself with the securities which by reason of the agreement had been delivered to the children, who comprised the parties of the first part, and for the same reason the live stock and farming implements should have appeared as having been turned over to herself as widow, and to her minor child, or the probate guardian if one had been appointed. This would leave the remaining items which were outside the agreement to be accounted for in the usual way. If any balance in money then remained, this would be distributed in accordance with the statute of distributions. Such a form of accounting would not, of course, have included the farm, the sole ownership of which had been acquired from the other heirs by the widow and her daughter as one of the units of settlement, they taking their title upon a valuation which so far as the appellants are concerned was fully covered by the assumption of the payment of the notes and the delivery of certain certificates of stock and another outstanding promissory note for a small amount made by one of the appellants, and evidently forming a part of the assets of the estate, so that, when the parties of the first part had received the personal property to which they were entitled under the agreement, they had been paid fully the consideration for which they had deeded their interest in the real estate. But the account filed and finally allowed, as modified by the report of the auditor, was stated upon the theory that, upon ascertaining what the several shares of each in the personal estate as a whole would have been if no settlement had been made, and showing performance of the agreement, the same result in substance would be attained.
Under the reasons of appeal so far as they appear in the exceptions, by which the scope of the appellants' contention must be determined, no objection appears to the method adopted except as we have previously stated. Bartlett v. Slater, 182 Mass. 208. The exceptions recite that "Francena M. Fletcher paid the Richards note and also took up and paid the Tuttle note and afterwards charged the Richards and Tuttle notes on the credit side of her accounts, and also charged herself with the same in item 18 in schedule A," which was the debit side of the account.
By this form of accounting the distributive shares of the appellants have been neither increased nor diminished, and for the purposes of distribution of the remainder of the estate they are left as if no statement of the performance of her individual undertaking appeared. If this part of the agreement, therefore, had been performed it was all the contesting heirs rightly could claim upon the issue raised by them, and their offer of evidence that the valuation of the farm and personal property at the death of the intestate originally was underestimated as an inducement for her assumption of this indebtedness was irrelevant, and was excluded properly.
In the contest between the parties the account as allowed by the Probate Court has been considered as a transcript of what actually was done in carrying out the settlement in conformity with its terms, and, although it should have been made up as we have said, yet as the agreement has been carried out, and the property coming to the heirs and herself delivered, this account which is said to be final in effect may be treated as if allowed after a formal decree of distribution, and in this way all that the various parties interested in the estate desired to accomplish may be treated as performed. R.L.c. 150, § 20. Palmer v. Whitney, 166 Mass. 306, 309.
Exceptions overruled.