54 A.2d 367 | N.H. | 1947
The demurrer admits as true the facts properly pleaded in the petition for specific performance. Glover v. Baker,
The Attorney General was not a party to the agreement and his approval was not obtained. It is clear that the Attorney General is an indispensable party, both at common law and by statute, in the enforcement and supervision of charitable trusts. Souhegan Bank v. Kenison,
If this were a "typical situation in which the Attorney General should and probably will receive notice" (Note, State Supervision of the Administration of Charitable Trusts, 47 Col. L. R. 659, 662 (1947), no such notice is required in the absence of legislation so providing. The demurrer is overruled insofar as it relies on the position that the Attorney General was an indispensable party entitled to notice.
There appears to be some support for defendants' contention that the compromise agreement cannot be specifically enforced since the bill fails to allege that the agreement was in writing, filed in court or entered upon the docket. Fernald v. Ladd,
The defendants assert that the failure to have the compromise agreement approved by the Superior Court is a ground for demurrer. The answer is found in Beliveau v. Amoskeag Co.,
It is the further contention of the defendants that the compromise agreement cannot be enforced without the prior approval of the Probate Court. This involves an interpretation of R. L., c. 355, s. 27: "The probate Court may authorize administrators and guardians to adjust by compromise or arbitration any controversy between them and persons making claims. against the estates in their hands." The legislative history of this statute indicates that it is elective and permissive rather than mandatory. As stated in the title of Laws 1872, c. 7 it was "An Act Extending the Power of Executors . . . to Settle Controversies by Arbitration or Compromise." It did not cut off the preexisting power of executors and other fiduciaries to compromise without prior probate approval subject to the chance of surcharge. 2 Woerner, American Law of Administration (3d ed.) s. 326. So long as the settlement was reasonable and beneficial to the estate it was as valid without court approval as with it. Simes v. Ward,
Unless the statute of probate approval is mandatory, the weight of authority holds a reasonable compromise valid and enforceable. 85 A.L.R. 199; Simes v. Ward, supra. In so far as the dictum and alternative holding in Phinney v. Bank,
Since the record in this case does not contain any evidence or findings and consists only of the pleadings, no premature opinion is expressed as to whether or to what extent the defendants are subject to individual liability. Such a determination necessarily depends on *417
the evidence when and if produced. Carter v. Provo,
There is able support for the proposition that equity will enforce executory agreements to compromise claims against an estate. 6 Williston, Contracts (Rev. ed.), s. 1845; Restatement, Contracts, s. 417. Whether the compromise agreement in the instant case will be enforced in equity will be determined by equitable principles in the Superior Court. So far as this case stands on the pleadings, the defendants have refused to carry out an agreement entered into by their attorneys and the attorneys for the plaintiff. Equity can compel specific performance thereof on equitable grounds if the agreement is found to be reasonable and of benefit to the estate.
"The foregoing views are considered to meet the reasonable needs of standard and ethical practices of men in their business dealings with each other . . . . It is not practical that the law should adopt all precepts of moral conduct, but it is desirable that its rules and principles should not run counter to them in the important conduct and transactions of life." Watkins v. Carrig,
Demurrer overruled.
All concurred.