Ellis v. Hunt

Rugg, C. J. This is a petition for authority to compromise a controversy respecting the probate of a will. Everett H. Barney died leaving two instruments, in form a will and codicil, whereby most of a large estate was given to three trustees upon elaborate trusts chiefly for the benefit of a park in the city of Springfield. A controversy as to the allowance of the will and codicil arose between the heirs at law and the executor. That controversy has been composed by an agreement to which confessedly all those interested are parties, including the Attorney General as representing the public, except those appointed trustees by the will. The question presented on this record is [43] whether such trustees are necessary parties to a proceeding under R. L. c. 148, § 15, asking the court to approve the compromise of such a controversy. The purpose, operation and effect of that statute have been stated in several cases. Elder v. Adams, 180 Mass. 303. Abbott v. Gaskins, 181 Mass. 501. Hastings v. Nesmith, 188 Mass. 190. Brandeis v. Atkins, 204 Mass. 471. Baxter v. Treasurer & Receiver General, 209 Mass. 459. Sherman v. Warren, 211 Mass. 288. Neafsey v. Chincholo, 225 Mass. 12, 15. Renwick v. Macomber, 225 Mass. 380, 384, 385. The effect of these decisions as applied to the facts here presented is that proceedings under the statute are anomalous and its terms must be strictly complied with or there is no jurisdiction in the court to approve the agreement. The agreement for compromise, even when approved by decree of the court, is not in any accurate sense a modification of the will. The will as an entirety and in all its parts is established and admitted to probate. The court does not undertake to admit to probate a part of the will and to refuse to allow another part. But the agreement whereby the heirs at law on the one side and the devisees and legatees on the other have modified their rights under the will, is made matter of public record, its validity is approved by the court, and the duty of carrying out its terms is placed on those executing the will. The agreement is not incorporated into the will. The will stands by itself. Although the practice is to insert a clause in the decree of the court to the effect that the estate is to be administered in accordance with the agreement, yet the rights of the parties so far as they rest upon the agreement are contractual and not testamentary. The concessions made on the one side and accepted on the other take effect not because that is the will of the testator, but because that is the agreement of the parties. The changes wrought in the disposition of the property are not the result of changes in the will, but of concessions by the beneficiaries under the will to the heirs at law or among themselves as to the disposition to be made of the interests granted by the will. It is a change made, not in the expression of the will but in the volition of legatee or devisee as to what he is to do with the benefaction which he has received under the will. The Legislature has never undertaken to permit heirs at law and legatees to make a new will for a testator. There would be [44] a certain anomaly in recognizing testamentary power and in providing at the same time that after the maker of the will had died and his testamentary power gone forever, his disposition might be entirely frustrated. That would be a quite different matter from facilitating the making of valid contracts by competent legatees and devisees as to what they will do with that which they may receive under ¿ will, subject to the supervisory power of the court to see that such contracts are just and reasonable toward all interests whether in being or future and contingent. Agreements of this nature are entirely valid outside of the statute. Their binding character as contracts has been recognized and enforced in equity both before and since the enactment of any statute authorizing courts to approve them. Leach v. Fobes, 11 Gray, 506. Blount v. Wheeler, 199 Mass. 330. The statute by its terms does not go to the extent of empowering the court or the parties to eliminate a trust without a proceeding to which the trustees are parties. Its words are, the court has jurisdiction “to authorize the persons named as executors in an instrument purporting to be the last will of a person deceased, or the administrators with such will annexed, to adjust by arbitration or compromise any controversy between the persons who claim as devisees or legatees under such will and the persons entitled to the estate of the deceased under the statutes regulating the descent and distribution of intestate estates, to which arbitration or 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 arbitration or compromise, and .those claiming the estate as intestate, shall be parties.” It is manifest, from this analysis of the nature of an agreement for compromise and of the function of the court respecting it, that everybody who by the will is vested with a title to property which is to be affected by the agreement is a necessary party to any agreement to be approved by the court. The will in the case at bar contains direct gifts of real estate as well as of personal property to the trustees. When the will is established, the legal title vests in them. The legal title to the real estate will vest in them by direct operation of the will. This inevitable effect of succession of legal title cannot be eliminated [45] by contract between the cestuis que trust and strangers, even though the strangers be the heirs at law of the testator. The cestuis que trust can make such contracts relating to their beneficial interest as may be permitted by the law. But they cannot without the' assent of the trustees exclude them from being repositories of the legal title which is cast upon them by the will. No contract which shall require a transfer of that title can be effectual unless the persons who hold it are parties to that agreement. They are necessary parties to such a contract. The statute by express terms requires that the executor or administrator shall be a party to the contract. That is essential in order that he may be required to administer the estate according to the agreement rather than according to the will, which otherwise he would be obliged to follow. Either the trustees named in the will or those appointed by the court in their stead must make conveyance of the title vested in trustees under the will in question, in order that the terms of the proposed agreement may be carried out. The transfer of the title is an interest of the trustees in the subject matter of the compromise which will be affected. The authorization contained in R. L. c. 148, § 16, that the court may appoint some person to represent any bequests for charitable purposes “if no trustees have been appointed in such will,” is an implication that if trustees have been so appointed they are necessary parties. A trust not incapable of execution and not accomplished cannot be extinguished by mere agreement of parties. Young v. Snow, 167 Mass. 287. It was plainly intimated, if not expressly decided, in Parker v. New England Trust Co. 215 Mass. 226, that a trustee who is to be eliminated is a necessary party to such an agreement. It is well known that the character, integrity, habits of thought and methods of business of the persons named as trustees often are potent factors with testators in determining the nature of trusts established by wills. This circumstance is entitled to consideration in deciding whether the Legislature intended to empower the other parties in interest by agreement to eliminate the trustees named by the testator without their becoming parties. While there are cases holding that a trustee in some instances is not a person aggrieved by decrees as to the disposition of trust funds, Nesbit v. Cande, 206 Mass. 437, Wiggin v. Swett, 6 Met. [46] 194, 197, Bryant v. Thompson, 128 N. Y. 426, there are other cases where the trustee is held to have such an interest respecting a trust fund that he may be a person aggrieved within R. L. c. 162, § 9. Ripley v. Brown, 218 Mass. 33, and cases collected. The legal interest of the one having title as trustee has been held to be enough to entitle him to appeal. Northampton v. Smith, 11 Met. 390, 393. The principle of Sears v. Choate, 146 Mass. 395, to the effect that a trust whose objects have been accomplished, where the interests under it have all vested and where all parties beneficially interested desire its termination, may be ended by decree of the court, does not aid the petitioners. Such a trust hardly could be terminated by a proceeding to which the trustees were not parties. If it be conceded that the right of the trustees to compensation for their services does not constitute an interest in them in the sense of the statute, so as to entitle them to a standing under Ensign v. Faxon, 224 Mass. 145, and Slater v. Hurlbut, 146 Mass. 308, that does not prevent them from being necessary parties. The conclusion here reached rests upon the simple proposition that no agreement as to the legal title to real or personal estate can be complete and self effectuating unless the person who holds that title is a party to it. In accordance with the terms of the report, let the entry be, petition dismissed without costs and without prejudice. So ordered.