191 Mass. 211 | Mass. | 1906
Under the agreement between the widow and the adult heirs at law of Theodore C. Fletcher, which as between themselves was made for the purpose of settling and distributing his estate, it is expressly provided that, with their consent, she is to be appointed administratrix without giving sureties on her official bond. By reason of this provision the terms of settle
The exceptions explicitly state that the petitioner upon her appointment filed an inventory to which no objection was made, and that the estate has been settled substantially in accordance with the terms of the agreement. Instead of ignoring the probate proceedings and resorting to a court of equity for specific performance on the ground that the agreement had not been carried out, the appellants elected to appear and contest the allowance of the account. We treat the appeal as properly before us.
Included in the indebtedness of the intestate was his liability on two promissory notes made by his.son, the appellant Daniel C. Fletcher, which the widow individually was to assume and
An examination of the account reveals that it is made up upon a fundamentally wrong basis. The administratrix should have charged herself with the assets described in the inventory, and credited herself with the securities which by reason of the agreement had been delivered to the children, who comprised the parties of the first part, and for the same reason the live stock and farming implements should have appeared as having been turned over to herself as widow, and to her minor child, or the probate guardian if one had been appointed. This would leave the remaining items which were outside the agreement to be accounted for in the usual way. If any balance in money then remained, this would be distributed in accordance with the statute of distributions. Such a form of accounting would not, of course, have included the farm, the sole ownership of which had been acquired from the other heirs by the widow and her daughter as one of the units of settlement, they taking their title upon a valuation which so far as the appellants are concerned was fully covered by the assumption of the payment of the notes and the delivery of certain certificates of stock and another outstanding promissory note for a small amount made by one of the appellants, and evidently forming a part of the assets of the estate, so that, when the parties of the first part had received the personal property to which they were entitled under the agreement, they had been paid fully the consideration for which they had deeded their interest in the real estate. But the
Under the reasons of appeal so far as they appear in the exceptions, by which the scope of the appellants’ contention must be determined, no objection appears to the method adopted except as we have previously stated. Bartlett v. Slater, 182 Mass. 208. The exceptions recite that “ Franeena M. Fletcher paid the Richards note and also took up and paid the Tuttle note and afterwards charged the Richards and Tuttle notes on the credit side of her accounts, and also charged herself with the same in item 18 in schedule A,” which was the debit side of the account.
By this form of accounting the distributive shares of the appellants have been neither increased nor diminished, and for the purposes of distribution of the remainder of the estate they are left as if no statement of the performance of her individual undertaking appeared. If this part of the agreement, therefore, had been performed it was all the contesting heirs rightly could claim upon the issue raised by them, and their offer of evidence-that the valuation of the farm and personal property at the death of the intestate originally was underestimated as an inducement for her assumption of this indebtedness was irrelevant, and was excluded properly.
In the contest between the parties the account as allowed by the Probate Court has been considered as a transcript of what actually was done in carrying out the settlement in conformity with its terms, and, although it should have been made up as we have said, yet as the agreement has been carried out, and the property coming to the heirs and herself delivered, this account which is said to be final in effect may be treated as if allowed after a formal decree of distribution, and in this way all that the various parties interested in the estate desired to accomplish may be treated as performed. R. L. c. 150, § 20. Palmer v. Whitney, 166 Mass. 306, 309.
Exceptions overruled.