203 Mass. 397 | Mass. | 1909
This suit is before us on appeals taken by the defendant James D. Hogan (1) from an order refusing to consider exceptions to certain rulings and findings of the master, (2) from an order denying a motion to recommit the master’s report, and (3) from the final decree.
I. No objections were filed to the master’s report within five days, as required by the Equity Rule 31 of the Superior Court. The first appeal is not well taken. Quimby v. Tapley, 202 Mass. 601. Hillier v. Farrell, 185 Mass. 434.
2. By the terms of the rule to him, the master was required to report “ any evidence which either of the parties may desire to have reported and may request at or before the hearing on the preliminary draft.” The first request for a report of any evidence disclosed on this record is that contained in the motion to recommit. The fact that the first request for a report of evidence is in a motion to recommit shows that the request was not made within the time specified in the rule to the master. Apart from the provision for the report of evidence in the rule to the master, the parties had no right to it; that is a matter lying in the discretion of the court. Henderson v. Foster, 182 Mass. 447.
The other reason for the motion to recommit was to ascertain “ The fair value of said real estate assuming first, that said real estate was owned in fee simple by said Michael Hogan at the time of his decease, and second, assuming that he had only a life estate in a portion thereof and owned the balance in fee simple.” Whether the case should be recommitted for this reason was within the discretion of the judge, and it affirmatively appears that the judge of the Superior Court exercised his discretion wisely. This appeal is not well taken.
3. The remaining question is whether on the facts stated in the master’s report, or on those facts with such inferences of fact as this court may draw from them, the defendant can complain of the decree made by the Superior Court.
It appears from the master’s report that one Michael Hogan died testate on December 10, 1900. By the third clause of his
Michael’s will was admitted to probate by the Probate Court on January 26,1901. An appeal was taken from that decree by one Honora Davis, a sister of the deceased. On May 14, 1901, an agreement of compromise was made by which the will was to be admitted to probate, $1,700 was to be paid to Honora Davis, the contestant, and $500 to E. M. Wood, Esquire, her attorney, in all $2,200; these sums, together with the amounts due counsel for the several parties and counsel “in behalf of said will,” were to be paid by the administrator with the will annexed, and “ apportioned and paid out of our respective shares in proportion to the amount received by us under said will.”
In the following June the defendant Frink was appointed administrator with the will annexed, and on February 6,1904, the defendants Maria Hogan Barry, Daniel Hogan and James Hogan entered into an agreement by which they agreed that the value of the property coming to Daniel and Maria was $1,650, and that the real estate coming to James was $7,300 less the expense of defending his title to the real estate devised to him; “ and that the above values shall be taken as the basis of computing the several amounts to be paid .into the estate in accordance with a certain agreement signed by us and Mrs. Duffy, dated May 14th, 1901.”
At some time before April 12, 1906, the present bill was filed by the plaintiff (the housekeeper to whom the testator left $500), setting forth her legacy, the appeal from the probate of the will and the agreement of compromise, and alleging that Maria, Daniel and James have neglected and refused to value their shares. By amendments to the bill of complaint, made after the special administrator was appointed, he was made a party defendant and it was alleged that there was not then in the
On April 2, 1906, the case was sent to a master to “ find [1] the whole amount that is to be paid under the agreement set out in plaintiff’s bill of complaint, [2] the value of the respective shares received by the parties to said agreement under the will of said Michael Hogan and [3] also find the amount which each of said parties to said agreement must contribute under said agreement to the payment of the sum found due as aforesaid.”
The master reported that the whole amount to be paid to Honora Davis and her counsel was $2,200; to the counsel for Maria and Daniel, $500; to the counsel for James, $549; and to the counsel for the plaintiff, $100; in all, $3,349.
He reported that nothing passed to Maria and Daniel under the devise of real estate in North Adams, and that the share which will be received by them under the residuary clause is by force of the agreement of February , 6, 1904, and apart from it, of the value of $1,650 ; that the value of the real estate devised to James was $7,300, from which was to be deducted under the agreement of February 6,1904, $500, making the net value of it $6,800, to which was to be added $319 as the value of the personalty bequeathed to him, and the pecuniary legacy of $1,000, making the value of the whole share coming to him $8,119. The value of the plaintiff’s share was $500. This made the value of all these shares $10,269.
He then found the several sums to be contributed under the agreement of May 14, 1901, to be: Maria and Daniel, 1650-10269ths of $3,349, = $538.10; James, 8119-10269ths of $3,349, = $2647.84; and the plaintiff, 500-10629ths of $3,349, = $163.06. The final decree directed the several defendants to pay the said several sums to the administrator.
The first objection taken to the decree by the defendant James Hogan at the argument in this court is that it does not provide for payment to the plaintiff of the balance so found to be due her, to wit, $500 less $163.06, as prayed for in the bill. The plain
The second objection urged by him is that, until the Probate Court has allowed the final account of the administrator, the amount coming to Maria and Daniel as residuary legatees will not be finally ascertained. That is true. But the agreement of compromise could not be carried into effect if an estimate of that amount were not made. For that reason there was .an implied term to that effect in the agreement.
4. The appellant has undertaken to make in this court a new motion to recommit the suit to the master on the ground of newly discovered evidence, and has offered affidavits in support of it. Where a suit comes to the full court on an appeal from a j decree entered on a master’s report, to which report no exceptions have been taken, the only question (as we have said) is whether, on those facts or on those facts coupled with such inferences of fact as may be drawn by this court, the decree I in question is right. See Lakin v. Lawrence, 195 Mass. 27. f If evidence is discovered after a final decree has been entered, | which evidence would entitle the plaintiff to a rehearing, the j remedy of the party discovering the evidence is to file a bill to review the final decree. Such a bill cannot be filed in this/ court. Crocker v. Crocker, 198 Mass. 401.
There is no pretense that this case comes within R. L. c. 159, § 24, re-enacting St. 1859, c. 237, § 6, which provides that where witnesses are examined orally it shall be competent for the full court to grant leave to parties in special cases of acci
Decree affirmed.
