Hastings v. Nesmith

Loring, J. [After the foregoing statement of the case.] The petitioner’s contention that she is entitled to income from the death of the testatrix by virtue of Pub. Sts. c. 136, § 24, (now R. L. c. 141, § 24,) is the natural outcome of the mistake, (on which all proceedings in this matter have been based from the time that the compromise agreement was made,) namely, that such an agreement modifies the will. How it could be thought to modify this will in this Commonwealth is hard to understand. This will was admitted to probate here on February 1,1900, and the compromise agreement was not made until June 20 of the following year. But apart from that fact such an agreement never is a modification of the will; it is a compromise of the rights of the parties under the will on the one side, and of those who claim that the will is void in respect to the matters covered by the compromise, on the other side. In the case at bar the consent decree to which the compromise agreement was attached having been referred to by Mary Nesmith and Julia Ivy in their petition to the Probate Court to be appointed trustees (inaptly, to be sure) as a paper containing the terms of the trust which was to be administered by them, it was admissible to prove what those trusts were, but not as a modification of the will. It is not a will nor an instrument in the nature thereof within Pub. Sts. c. 136, § 24, (now R. L. c. 141, § 24,) and the petitioner is not entitled to the income from the death of the testatrix by virtue of that act. Neither is she entitled thereto as matter of construction of the compromise agreement as an agreement. What that gives her is the income of the fund turned over to the trustees under the agreement. This is not controlled by the reference made in that agreement to the laws of this Commonwealth. Decree of the Prolate Court reversed ; lili dismissed with costs.