180 Mass. 303 | Mass. | 1902
' This is a petition by an executor for leave to compromise a controversy as to the validity of a will. Certain minor children, by their guardian ad litem appointed by this court, signed the agreement of compromise; but their statutory guardian and two other parties refused to sign it in its amended form, and objected and excepted to the decision of the court. The other two parties have waived their exceptions, and the question before us arises on a motion to dismiss the exceptions of the statutory guardian on the ground that she has no standing to object, in view of the agreement of the guardian ad litem.
The last clause of the Pub. Sts. c. 139, § 29, gives a statutory guardian a right to represent his ward in all legal suits and proceedings “ unless another person is appointed for that purpose as guardian ad litem or next friend.” Here is a plain implication that if a guardian ad litem is appointed there is no such right. Section 43 of the same chapter expressly reserves to the guardian ad litem power paramount to that of the statutory guardian to represent a minor in suits in court. St. 1896, c. 456, adds emphasis to the sections above cited. See Davenport v. Davenport, 5 Allen, 464; Burke v. Burke, 170 Mass. 499; Taylor v. Lovering, 171 Mass. 303. We are therefore of opinion that the guardian ad litem properly represents the minors in this suit, and that their statutory guardian has no standing to take or prosecute exceptions, against the will and in violation of the agreement of the guardian ad litem. The exceptions must, therefore, be dismissed, and the case left for further proceedings before a single justice.
But we do not intimate that a decree should be entered for the petitioner on the record as it now stands. This proceeding, in which the court upon the agreement of parties interested can modify the will of the testator, is anomalous and rests upon the statutes. Pub. Sts. c. 142, §§ 13, 14, 16. St. 1889, c. 266. The court has no jurisdiction unless the requirements of the statute are strictly complied with. The compromise must be in writing. The executor or administrator with the will annexed, those claiming as devisees or legatees whose interests will be affected by the proposed compromise, and those claiming the estate as intestate, must all be parties to it.
This case was argued on the merits as well as on the motion
Such considerations as these naturally arise upon the facts that appear in the record. If they were presented by a party who could give us jurisdiction it would be our duty to pass upon them. They are important, for they relate to the jurisdiction of the court and the validity of the proceedings on which the future rights of the parties will depend. The waiver of exceptions by
Exceptions dismissed.