Equity Jurisdiction, To apply for satisfaction of debt trust fund created for that purpose, Adequate remedy at law, Statute of limitations, Laches. Subrogation. Contract, Construction. Trust. Executor and Administrator. Equity Pleading and Practice, Bill, Demurrer, Parties.
By an instrument purporting to be his will, an alleged testator left practically all of his property to one brother of several brothers and sisters. Descendants of other brothers and sisters, who, in case of intestacy, would have been entitled to seven twenty-seconds of the estate of the decedent, contested the allowance of the will, and procured large advances of money for that purpose from a stranger to whom and to one of their own number they assigned a part of their "interests in said estate" of the alleged testator, the proceeds of the interests so conveyed to be used, first, to repay all moneys advanced, second, to pay "lawyers bills and for other expenses." After a trial and a disagreement of the jury, and after a series of compromise agreements with other next of kin of the alleged testator, a decree was made allowing the will and adopting all of the agreements, so that the contestants, instead of receiving no part of the estate, received five twenty-seconds of it, and provision also was made for the payment of all their expenses, which were very large. Held, that for the repayment to him of the advances so made by him the stranger was entitled to an equitable charge upon the interests, of which he had taken an assignment, in the shares due to the contestants under the compromise decree, the fact that the will was allowed not being material because such allowance was merely formal, the decree accompanying it being virtually a disallowance of the provisions of the will in favor of the contestants.
By an instrument purporting to be his will, an alleged testator left practically all of his property to one brother of eleven brothers and sisters. Some others of the next of kin of the decedent, who in case of intestacy would have been entitled to seven twenty-seconds of the estate, contested the allowance of the will, and a stranger, on their promise to reimburse him from their shares, made large advances of money to them for that purpose and on their behalf employed counsel to whom he agreed to pay a large fee "in case the will is defeated and our clients get their shares." Pending the contest the brother who was to benefit by the will died. After a trial which resulted in a disagreement of the jury, a compromise agreement was made whereby those succeeding to the brother's interests were to receive twenty, and the contestants were to receive thirty-five one-hundred tenths, and each group was to receive "on account of expenses heretofore incurred" $500,000, the balance to be equally divided between the two groups, and, to carry out the agreement, those succeeding to the brother's interests and the contestants were each to receive twenty one-hundred tenths forthwith, the remaining fifteen one-hundred tenths to be paid to the contestants when all court proceedings properly were ended, and the remainder of the estate was to be placed in the possession of trustees to carry out the agreement. The agreement also provided that all expenses incurred in carrying it out should be furnished, one half by those succeeding to the brother's interests and one half by the stranger, one of the trustees and one of the contestants, and "that the parties who furnish such funds shall be entitled to reimbursement." The stranger, with the trustee and the contestant referred to, signed the agreement and agreed to make advances according to its provisions, and the stranger made further advances. After extended negotiations with the other next of kin a decree finally was made distributing the estate in accordance with agreements of the parties, and a fund was paid to the trustees. The counsel brought a suit against the stranger and recovered judgment for his fee contingently promised. Held, that the stranger, both for the re-payment of the advances of money which he had made and for the payment of the judgment for the contingent fee of the counsel whom he had employed, was entitled by a suit in equity to avail himself of the fund thus set apart for the relief of the contestants, and, through them, for his relief.
By an agreement in writing made between the parties to a contest as to the proof of a will, it was provided that a part of the estate of the decedent should be paid to trustees who therefrom should pay a certain amount to each of the parties to the contest "on account of expenses and litigation heretofore incurred," that "all expenses incurred in the carrying out of" the agreement should be furnished, one half by one of the parties to the contest, and one half by one of the trustees, the other contestant and a stranger who previously had made advances, and "that the parties who furnish such funds shall be entitled to reimbursement of the same." The three parties who by the provisions of the agreement were to pay the second half of the expenses incurred in carrying it out also signed an agreement, appended thereto, that they would "from time to time, as required by the representatives of the parties" named in the agreement, advance one half of such expenses. The stranger advanced large sums of money for the carrying out of the agreement without the trustees requiring him so to do. Held, that the limitation of the stranger's undertaking as to making advances, that they should be required by the parties, did not preclude him from establishing an equitable charge upon the funds in the hands of the trustees for all of his advances, since the agreement creating the trust provided that all sums advanced for the purpose of carrying out the agreement should be repaid.
While a final decree of a court having jurisdiction of the subject matter of the settlement of the estate of a decedent, determining the parties to whom and the proportions in which the estate shall be divided if a division is made, conclusively determines those matters, a suit in equity may be maintained against the administrator and certain persons named in the order as to distribution to compel the defendants to recognize the validity of an equitable charge upon such of the funds in the hands of the administrator as are due under the decree to the other defendants.
Where one, who has made advances of money and rendered himself liable for the payment of a further sum on behalf of certain of the next of kin of a decedent in a contest against the allowance of the decedent's will, has a right to charge with the payment of such sums certain parts of the shares of certain of the next of kin and a fund which, by a decree of the Probate Court adopting compromise agreements of the parties, was to be paid to trustees for the payment of expenses attending the contest, he may enforce such right by a bill in equity, to which a demurrer on the ground that he has an adequate remedy at law will not be sustained.
The fact, that in a bill in equity different means are sought for the enforcement of one equitable right relating to the whole or different parts of one estate, does not make the bill multifarious.
It is not indispensable that all the parties to a suit in equity should have an interest in all the matters contained in the suit. It is sufficient if each party has an interest in some matters in the suit and that they are connected with the others; and, even if one is a necessary party to one part only of the case, the bill is not therefore necessarily multifarious.
In a bill in equity there were joined as parties defendant the administrator of an estate, and all the parties who by a decree of the Probate Court were found to be entitled to share in the final distribution of the estate, including certain persons to whom as trustees was to be paid from the estate a fund which they were to use in paying expenses of various of the next of kin in bringing about a settlement of a contest as to the allowance of an alleged will of the decedent. A partial distribution of the same estate in administration in another State had taken place. By the bill the plaintiff sought to charge the shares of certain of those interested as distributees and the trust fund with the payment to him of sums which he had advanced for such distributees in furthering the contest and bringing about the settlement, and also to compel the payment to him of the shares of two of the distributees which he had purchased. Held, that the bill was not multifarious, since it sought the determination of all rights of the plaintiff in a single estate, and it was for the interest of all parties that the whole question of the plaintiff's rights in the estate should be settled once for all in one suit.
In a suit in equity to charge with a debt due to the plaintiff from one group of defendants certain funds in which the other defendants are interested, if it appears from the allegations of the bill that an action at law by the plaintiff against the alleged debtors would be barred by the statute of limitations, but those defendants do not demur to the bill, demurrers of other parties on that ground will be overruled.
Where, from the allegations in a bill in equity, to enforce a claim of the plaintiff against the interests of certain persons in the estate of a decedent and against a fund to be paid from such estate to certain trustees, it appears that the bill was brought within four months after a decree of the Probate Court determining the rights of the defendants in the estate, a demurrer to the bill will not be sustained either on the ground that it is barred by the statute of limitations or by laches.
If, from the allegations of a bill in equity, seeking to enforce a right of subrogation to the rights of one who had maintained a successful suit against the plaintiff, it appears that the bill was filed within fourteen months after the final decree in the suit against the plaintiff, the bill is not demurrable, either on the ground that it is barred by the statute of limitations or that it is barred by laches of the plaintiff.
Where a bill in equity respecting a claim which arose in another State does not contain allegations as to the law of that State regarding the limitation of actions, a demurrer on the ground that the cause of action was barred by the statute of limitations of that State cannot be sustained, since the law of such State is a fact in a suit here and no allegation as to it appears in the bill.
SHELDON, J.
The plaintiff alleges in his bill that for his advances made to the defendant Root for his benefit and for that of the other four heirs to the Davis estate for whom Root was acting (hereinafter called the Root group), he had, under the assignments made by the Root group, a lien upon fractional interests of what would be their respective shares in said estate if the will of the elder Davis should not be allowed; that by the agreement of compromise made on April 28, 1893, between the parties in interest, the will, although in form to be allowed, was in reality set aside and shares larger than they could have expected were assigned to the Root group; that by that agreement there was to be allowed to the Root group out of the estate the sum of $500,000, on account of their expenses theretofore incurred in litigation, and that this provision was intended to be a provision for the repayment of the advances so made by the plaintiff, and for the payment of Mr. Ingersoll, who had been employed to represent that group on the promise of a contingent fee. This agreement provided also, in its thirteenth article, that all expenses incurred in carrying it out should be furnished, one half by the parties to it of the first part, and one half by the plaintiff and two others, and provided for their reimbursement out of the estate. A decree was afterwards entered in the Montana court, in which the contest over the will was pending, admitting the will to probate, ordering distribution according to the terms of the compromise agreement and some later agreements not now material, and adopting the agreements of the parties. That court also by a later decree confirmed the agreement of compromise and the later agreements by which contests over the will were settled. The plaintiff alleges also that he then advanced further sums of money which ought, under the agreement, to have been repaid to him out of the estate as well as out of the shares of the Root group. He avers that the assets in the hands of the defendant Leyson, the ancillary administrator of the estate of the elder Davis in this Commonwealth, after paying the amount which has been found due to Ingersoll, and the shares of other heirs upon which the plaintiff has no specific right of charge, are insufficient to meet the plaintiff's demands, and claims the right to hold the assets that are or should be in the hands of the defendants Davis and Palmer, regardless of distributions thereof which they have made to the distributees of the estate. He alleges also that, after the payment of Ingersoll out of the funds which are available to him, he is entitled to be subrogated to the equitable lien or charge which it has been decided that Ingersoll has upon the shares of the Root group or parts thereof. Ingersoll v. Coram, 211 U.S. 335. He has joined as defendants the administrators of the Davis estate in Montana and in this Commonwealth, all parties interested in the estate as distributees or their representatives, and all the parties to the agreements of compromise.
1. The first ground of demurrer is for lack of equity. We are of opinion that the plaintiff shows for the payment of his advances made before April 28, 1893, an equitable charge upon the interests in the shares of the Root group, of which he had taken assignments. This is scarcely disputed, and need not be discussed.
These shares or rights could not come into existence, and there would be no fund upon which the plaintiff could have a charge, unless the will of Davis were disallowed; and the will was admitted to probate. But it was merely a formal allowance, and in reality all but a few minor provisions of the will were wholly set aside by the agreement of the parties and the decree of the Montana court made thereon. This has been so decided both by the Circuit Court and by the Supreme Court of the United States. Ingersoll v. Coram, 127 Fed. Rep. 418, and 211 U.S. 335. It was so held in Montana, the State in which Davis had his domicil and in whose courts the proceedings were had. In re Davis' Estate, 27 Mont. 490. We cannot now regard this as an open question.
Can the plaintiff resort in equity to the fund provided by the compromise agreement to meet the expenses thus far incurred in the litigation? Was this fund or any part of it so far appropriated for the payment of his claim including what might be found to be due to Ingersoll as to give this right to the plaintiff? It was not provided by the agreement that payment should be made to him or to Ingersoll; the parties were "to have and receive" it out of the amount which was to be paid by the trustees. But it was set aside for their expenses. It was a means provided to meet these liabilities, a fund out of which they were to make the payments. Under such circumstances a creditor may in equity avail himself of the means of paying his demand which have been thus set apart for the relief of his debtor and through his debtor for himself. Wiggin v. Dorr, 3 Sumner, 410. Rice v. Dewey, 13 Gray, 47. Demott v. Stockton Paper Ware Manuf. Co. 5 Stew. 124. Harmony National Bank's Appeal, 101 Penn. St. 428. Dunlap v. O'Bannon, 5 B. Mon. 393. Ross v. Saulsbury, Respess Co. 52 Ga. 379. Ex parte Dever, 14 Q.B.D. 611. City Bank v. Luckie, L.R. 5 Ch. 773.
The plaintiff for the money furnished by him to carry out the compromise agreement rests upon the provision thereof that this should in part be furnished by him and others and should be repaid out of the estate. It is true, as was said in Elmore v. Symonds, 183 Mass. 321, 326, that a mere personal promise to pay a debt out of a particular fund will not create a lien or equitable charge upon the fund. Christmas v. Russell, 14 Wall. 69. Dillon v. Barnard, 21 Wall. 430. Trist v. Child, 21 Wall. 441. Removal Cases, 100 U.S. 457. In re Butler's Estate, 105 Fed. Rep. 549. Rogers v. Hosack's Executors, 18 Wend. 319. McDonald v. American National Bank, 25 Mont. 456. But this was not a naked agreement to pay the expenses in the manner provided. It was an arrangement by which the persons who were to furnish the necessary money had the right to understand that the funds of the estate, at least so far as those funds should come to the hands of the trustees, were appropriated for their payment. It was an agreement by all the parties then in interest, undertaking to provide for the disposition of the whole estate and engaging that the amounts properly furnished for the carrying out of the agreement should be repaid out of the designated fund. It authorized the custodians of the fund to apply it so far as might be necessary for this purpose. It appropriated the fund for the repayment, and thereby created an equitable charge upon it. This doctrine has been undisputed since the decision of Legard v. Hodges, 1 Ves. Jr. 478. It has been affirmed by this court. Baylies v. Payson, 5 Allen, 473. Pinch v. Anthony, 8 Allen, 536. It has been declared by other courts in elaborate opinions. Ingersoll v. Coram, 211 U.S. 335. Walker v. Brown, 165 U.S. 654. Fourth Street Bank v. Yardley, 165 U.S. 634. Ketchum v. St. Louis, 101 U.S. 306. Fletcher v. Morey, 2 Story, 555. Stranahan v. Richardson, 75 Minn. 402.
But the defendants contend that by the compromise agreement the plaintiff and his associates were to be repaid only such advances as they were required by the trustees to make. This contention is based upon the undertaking of Coram and others subjoined to the agreement that they would "advance from time to time as required" by the trustees "one half of all expenses," etc. This bound the plaintiff to make only such advances as should be required by the trustees, but it leaves unqualified the provision in the thirteenth article of the agreement that all funds furnished for "expenses incurred in the carrying out" of the agreement should be reimbursed out of the estate. The plaintiff may well have been unwilling to bind himself without limitation by an independent promise to advance money without an assurance from the trustees that it was really needed; but the parties to the agreement did not choose to put the limitation upon their promise of repayment. Moreover the covenant of the parties of the first part to furnish one half of such expenses was unlimited, and called for no assurance or requirement from the trustees; and the obligation of repayment to the plaintiff was the same as to those parties. We cannot now for the benefit of the defendants add to their absolute obligation a limiting stipulation not contained in the agreement. The agreement as written must be taken to be the final and complete repository of the intention of the parties to it. Bray v. Kettell, 1 Allen, 80, 83. Howland v. Leach, 11 Pick. 151, 154. Brown v. Fales, 139 Mass. 21, 28.
The bill in no way seeks to overthrow the orders of distribution made in the District Court of Montana or in the Probate Court here. Indeed, those orders, establishing the funds to which the plaintiff must look and fixing their amount, are the basis upon which, if at all, the bill must be maintained. Until those orders should be made, the plaintiff's remedy would not be completely available. Even if his rights might have been established and declared before the making of those orders, yet they could not all have been enforced until those orders should be made. Ingersoll v. Coram, 211 U.S. 335, 357. Those orders, if not appealed from, conclusively establish the amounts to be distributed, the parties entitled, and the sums to be paid to each distributee; they are not now to be attacked. Loring v. Steineman, 1 Met. 204. Crippen v. Dexter, 13 Gray, 330. White v. Weatherbee, 126 Mass. 450. Pierce v. Prescott, 128 Mass. 140, 143. Harris v. Starkey, 176 Mass. 445, 447. Tobin v. Larkin, 187 Mass. 279. Minot v. Purrington, 190 Mass. 336. Cleaveland v. Draper, 194 Mass. 118. But the Probate Court does no more than to determine these questions and to order distribution accordingly. It does not concern itself with assignments or pledges of the distributive shares or with the enforcement of equitable liens thereon. Such questions must be determined in other courts; and in the case at bar the questions raised are for a court of equity to settle. Lenz v. Prescott, 144 Mass. 505, 515. Nor is it a bar to maintaining this bill that part of the property involved may be in Montana. Ricketson v. Merrill, 148 Mass. 76, 83.
2. The reasons already stated show that the plaintiff has not an adequate remedy at law. His claim to charge for his payment the whole or some fractional parts of any of the distributive shares of this estate, or any part of the trust fund already referred to, or to reach and apply any part of that fund in the hands of distributees who have received it from the trustees either as volunteers or with notice of the plaintiff's equitable rights, plainly can be enforced only in equity. Lenz v. Prescott, 144 Mass. 505. Ingersoll v. Coram, 211 U.S. 335. The bill does not state a case in which the plaintiff has trusted merely to personal promises and must be left to rely upon them, as in Hussey v. Arnold, 185 Mass. 202, 203, and Taylor v. Davis, 110 U.S. 330. We need not consider whether, if that were the case, the bill could be maintained under the prayer for general relief or otherwise under R.L.c. 159, § 3, cl. 7.
3. It is said also that the bill is multifarious. So far as it seeks merely to recover the plaintiff's advances to the Root group and the amounts furnished by him to carry into effect the compromise agreement, this objection cannot be sustained. The bill aims at one object, the reimbursement of the plaintiff by the application of certain funds, in one or another of which all the defendants are directly or indirectly interested. The fact that different means are sought for the enforcement of one equitable right, out of the whole or different parts of one estate, does not make the bill multifarious. Parker v. Simpson, 180 Mass. 334. Dunphy v. Traveller Newspaper Association, 146 Mass. 495, 499. Lenz v. Prescott, 144 Mass. 505, 512, 513. Commercial Mutual Ins. Co. v. McLoon, 14 Allen, 351. As in Andrews v. Tuttle-Smith Co. 191 Mass. 461, it is desirable that all the claims of the plaintiff which affect the administration of the estate should be disposed of in one suit. All of the defendants are properly made parties. Attorney General v. Parker, 126 Mass. 216. Cassidy v. Shimmin, 122 Mass. 406. Graves v. Corbin, 132 U.S. 571, 576, following Brinkerhoff v. Brown, 6 Johns. Ch. 139. Colbert v. Daniel, 32 Ala. 314. The language of Devens, J., in Lenz v. Prescott, 144 Mass. 505, 513, is applicable: "The plaintiff has a demand growing out of an assignment by which every defendant was affected, and their various interests are so blended that it would be impossible to separate the investigation of them with convenience. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it is sufficient if each party has an interest in some matters in the suit, and that they are connected with the others. Even if one is a necessary party to some portion only of the case, the bill is not therefore necessarily multifarious."
The plaintiff avers also that he has purchased the interests of two of the distributees of the estate, and asks that the net amount of their shares be ordered to be paid to him. This alleged right too is a part of the general right which the plaintiff claims to have acquired in the estate and its administration. It is within the reason of the decisions last referred to. It is for the interest of all parties that the whole question of the plaintiff's rights in the estate should be settled once for all in one suit. Noble v. Joseph Burnett Co. 208 Mass. 75.
4. If the bill shows that the plaintiff's whole remedy is barred by our statute of limitations, this is ground of demurrer. Fogg v. Price, 145 Mass. 513, 516. But it is not material to determine whether an action at law for the plaintiff's advances made to the Root group before April 28, 1893, would be so barred. Those defendants have not cared to raise the question upon the demurrers. If they choose to waive the defense, it is not for the demurring defendants to set it up. Moreover, as we have seen, the plaintiff's equitable remedy against the fund here was not complete until proper action had been taken in the Probate Court; it would be hard to say that he was bound to bring his bill earlier. The same considerations apply to money furnished by the plaintiff since the date last mentioned under the compromise agreement. Nor need he seek to be reimbursed for what must be paid to Ingersoll until that liability had been established. So far as this defense depends upon the Montana statute of limitations and the local law of that State, this is matter of fact, of which, as it is not stated in the bill, we can have no knowledge except by plea and proof, and is not a ground of demurrer. And the bill is brought to enforce security which the plaintiff claims to hold by reason of equitable liens or charges. We need not consider whether such equitable security would fall with the indebtedness if the debtors should maintain this defense, or whether the plaintiff still could enforce his equitable security though the action at law was gone. Shaw v. Silloway, 145 Mass. 503, 506. Townsend v. Tyndale, 165 Mass. 293. This is not a good ground of demurrer.
5. For substantially similar reasons, it cannot be said that the bill shows such laches as to bar the plaintiff. The bill seems to have been brought with reasonable expedition after the decree of the Probate Court had been made. There is nothing to show that the rights of the defendants have been injuriously affected by delay. There is no fixed rule as to what constitutes laches; it depends upon the circumstances. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456, 458. See Sunter v. Sunter, 190 Mass. 449; Manning v. Mulrey, 192 Mass. 547; Hill v. Mayor of Boston, 193 Mass. 569; Moseley v. Bolster, 201 Mass. 135, The bill upon its face does not come within the doctrine of such cases as Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490, 494; Dunphy v. Traveller Newspaper Association, 146 Mass. 495; Willard v. Wood, 164 U.S. 502; Holder v. Hillson, 170 Mass. 466; Doane v. Preston, 183 Mass. 569; Sawyer v. Cook, 188 Mass. 163; and Marvel v. Cobb, 200 Mass. 293. See Hawkes v. Lackey, 207 Mass. 424. It may be that when the facts shall have been developed the plaintiff's case will fail in whole or in part by reason of laches or of the statute of limitations, if those defenses are set up, but we cannot say that either of them is shown by the averments of the bill.
We have not considered whether the agreements under which the plaintiff advanced money to the Root group could be avoided for champerty or maintenance, as that question has been neither raised nor argued.
Demurrers overruled.