Torrey v. Pond

Wells, J. By the will, “ all the notes, securities and demands,” held by the testatrix at her decease, against Seth H. Hayward, were to be received as a portion of the bequest to him. That bequest was of one third part of “ all the rest and residue” of her estate, both real and personal. The terms of the gift required an adjustment of the estate like that provided in case of advancements in intestate estates. Bacon v. Gassett, 13 Allen, 334. “ Questions concerning advancements of either party may be heard and determined upon a petition for partition; or the court may suspend proceedings until that question is decided in the probate court.” When so decided, the decree H shall be binding on all parties interested, whether the partition is made by the probate court or in the courts of common law.” Gen. Sts„ c. 136, § 66. In this case the question has been decided by a more formal proceeding; namely, a bill in equity in this court. It is true, the main purpose of that bill was to effect a distribution of the personal estate. But for that purpose it was necessary to settle all questions of deduction in the nature of advancements; and they were so settled. This suit is between the same parties or [358] their privies. The question is the same, and depends’upon the same state of facts. The decree in that case established the fact that the demands against Seth H. Hayward, “ held by the testatrix at her decease,” amounted to $6579.97; and that they exceeded his share of the personal estate by the sum of $1233.75 The parties are concluded by this decree ; and the petitioner can* not now go behind it, to show the facts upon which he relies to impeach its correctness. The statute provides, in case such an excess of advancements is found against any heir, that “ he shall not refund any part of it, but shall receive so much less out of the other part of the estate as will make his whole share equal ” to those of the others entitled to like shares. Gen. Sts. c. 91, § 7. The excess of demands against Seth H. Hayward, as found by the decree upon the bill in equity, must be deducted from his share of the real estate. Whether the whole should be allowed upon the partition sought by this petition, or only a part corresponding to the value of these premises compared with the whole amount of real estate similarly devised, we cannot determine upon the case presented here. If the petitioner seeks an apportionment, it would seem to be necessary that he should make those who are interested in the other real estate parties to the proceedings; unless the amount to be deducted in this suit shall be agreed upon by the parties thereto. Ordered accordingly.