292 Mass. 67 | Mass. | 1935
This is an appeal by the accountant from a decree of a probate court allowing, as modified, the final
The accountant was not a dependent of the intestate at the time of his death and no one of his other relatives was dependent upon him.
The trial judge found and ruled that the assent of the other next of kin, at Mrs. Ashley’s request, to her appointment as administratrix of his estate, was sufficient consideration to make binding her promise to share equally with the other members of the family whatever she might recover in the action brought by her as such administratrix for compensation for his death.
A decree was entered charging the accountant with $5,400 collected on the death claim against the Gypsum Packet Company in addition to the $200 received for property damage already charged by the accountant, and otherwise modifying the account as to expenses of litigation to correspond with this change.
There is no finding that the claim for death of the intestate was dishonestly prosecuted by the administratrix on the ground of her dependency. Such a fraudulent purpose can hardly be presumed in the absence of a finding. The validity of the claim was not adjudicated in the Federal court because the claim was settled. It has been found in the case at bar to have been without basis in fact. Nevertheless, it may have been the foundation for an honest settlement by agreement of parties. Moreover, this compromise was authorized by an ex parte decree of the Probate Court on petition by the administratrix. Silver v. Graves, 210 Mass. 26, 30-31. Codman v. Dumaine, 249 Mass. 451, 457-458. Sherman v. Werby, 280 Mass. 157, 160. Under the Federal statute the amount recoverable in any event was payable only for the benefit of those next of kin of the intestate dependent upon him for support. The personal representative of the deceased seaman, “ — while not given any right of action in behalf of the estate ■— is invested, solely as trustee for the designated survivors, with the right to recover for their benefit such damages as will compensate them for any pecuniary loss which they sustained by the death.” Lindgren v. United States, 281 U. S. 38, 41. There is nothing in that statute or in the common law which prevents heirs at law and next of kin from making an agreement in advance, in good faith and with no unfair advantage taken one over another, as to the division to be made among themselves of the proceeds of such a claim. Gadsby v. Gadsby, 275 Mass. 159, 163-166. Newburyport Society for the Relief of Aged Women v. Noyes, 287 Mass. 530, 534-535. See The Satanita, [1895] P. 248. The accountant had at law no preferential right over the other heirs at law to be appointed administratrix of the estate of the intestate.
The circumstances and findings in the case at bar show that the accountant has no right to this fund superior to that of the other heirs at law of the intestate. Her antecedent promise justifies the finding that she has money in her hands which in equity and good conscience she ought to share with the other heirs at law even though no direct consideration moved from every one of them to the accountant. Forbes v. Thorpe, 209 Mass. 570, 581-582. Mellen v. Whipple, 1 Gray, 317, 322. Central Supply Co. v. United States Fidelity & Guaranty Co. 273 Mass. 139, 144.
Decree affirmed.