Woodard v. Snow

Pierce, J. This is a suit in equity brought by the plaintiffs, as trustees for certain creditors of the defendant Benjamin P. Cheney under a trust for such creditors created and established [273] by a sealed agreement and an assignment dated respectively April 6 and April 10, 1914, against the trustees under the will of Benjamin P. Cheney, the father of the defendant of that name, to reach and apply the interest, if any, of the defendant Cheney under the will to the payment of the claims of the aforesaid creditors against Cheney as established by the instrument of trust. In 1895 Benjamin P. Cheney died testate. By a decree of the Probate Court for the County of Norfolk his will was admitted to probate and the defendant Cheney was duly appointed one of the executors and trustees thereof. An appeal from said decree was taken by the widow and certain heirs to the Supreme Judicial Court for said county. While the appeal was pending, an agreement by compromise was executed by all persons who would “be entitled to the estate . . . under the statutes regulating the descent and distribution of intestate estates,” "subject to the approval of the Supreme Judicial Court.” After the appointment of a suitable person to represent certain minors interested under the provisions of said will and all future subsequent interest which may arise under the same, and upon the report of that person that the compromise and agreement “sought by said bill to be confirmed by the decree of this court is just and reasonable in its effects upon the interests of such minors and such future contingent interests, ... is just and reasonable,” a single justice of this court, by decree entered March 27, 1896, and unreversed, found the compromise and agreement “is just and reasonable” and ordered that the written agreement of compromise be “ratified and confirmed.” He also ordered “that the decree of the Judge of Probate for Norfolk County allowing and approving said instrument purporting to be the last will and testament of said Benjamin P. Cheney be affirmed, as provided in and subject to the terms of said agreement.” The defendant Cheney’s first contention is that the interest given him by the will was one which could not be assigned. His second proposition is that under the decisions of this court (see Ellis v. Hunt, 228 Mass. 39; Baxter v. Treasurer & Receiver General, 209 Mass. 459) parties in making a compromise of a controversy as to the validity of an alleged will under the statutes . (now R. L. c. 148, §§ 15-18) have no right to make a new will for [274] the testator, and from this it follows (especially when the compromise is carried out by the will being admitted to probate) that the nature of the interest given a legatee is that described in the will. In the case of the agreement of compromise of the will of the defendant Cheney’s father, here in question, the parties did undertake to change the nature of the interest given to the defendant Cheney, and the agreement of compromise was confirmed by a decree of a single justice of this court made on March 27, 1896. By the agreement of compromise, which was confirmed by this decree, the interest given to the defendant Cheney was an interest which could be assigned. The decree confirming this agreement of compromise has not been reversed. Whether that decree was or was not an erroneous one is not material. This court had jurisdiction of the parties and of the subject matter of the cause in which that decree was made. It follows "that this .unreversed decree is the law of this case and that the rights of the parties are to be determined upon the footing that the terms of the will were changed by the agreement of compromise and not upon a construction of the will as ít appeared when offered for probate. Under the unrevoked decree of this court the defendant Cheney had an assignable interest to the amount of $615,000, and also a vested assignable expectant interest in the income from a trust estate, which he could sell or assign in payment of or to secure the payment of any present or future maturing obligations. Richardson v. White, 167 Mass. 58. Putnam v. Story, 132 Mass. 205, 212. Holbrook v. Payne, 151 Mass. 383. Andrews Electric, Inc. v. St. Alphonse Catholic Total Abstinence Society, ante, 20. The single justice of this court upon the evidence reported by the commissioner was warranted in finding, as he did, that the instrument of assignment and agreement, under which the plaintiffs make claim to the fund in the hands of the trustees, was given by Cheney “to the plaintiffs for a present and valuable consideration ... in good faith and without fraud, either actual or constructive,” and “was given to secure a valid existing indebtedness.” As the assignment was made in good faith upon a present consideration for the payment, and securing the payment of an admitted obligation of Cheney to [275] some of Ms creditors, and was made more than four months before the commencement of bankruptcy proceedings against Cheney, it was good between the parties and against the trustee in bankruptcy, whether the assignment be treated as a partial or full assignment of income. Bridge v. Kedon, 163 Cal. 493; S. C. 43 L. R. A. (N. S.) 404, and cases collected. Andrews Electric, Inc. v. St. Alphonse Catholic Total Abstinence Society, ante, 20. The right of Cheney and the right of the assignee to receive the income of the trust fund was a present, equitable right of ownership which ripened into an ordinary property right when the income, accumulated in the hands of the trustee, became payable under the terms of the trust; and was not a right or an assignment of a right in a debt to be created in the future or of the bare'possibility of there ever being such a debt. Wainwright v. Sawyer, 150 Mass. 168. Cummings v. Stearns, 161 Mass. 506. Huntress v. Allen, 195 Mass. 226. Clarke v. Fay, 205 Mass. 228. We are of opinion that the trust in favor of the plaintiffs attached to any - undistributed income in the hands of the trustees after payment in full of the two prior assignments. The decree of the single justice should be affirmed, with costs. Decree accordingly.