275 Mass. 159 | Mass. | 1931
Charles Gadsby, of Cambridge, died January 23, 1926, leaving a will executed in 1923, which was allowed. His wife died January 13, 1926. By this will the testator gave to his son, John F. Gadsby, the plaintiff, $5,000, to his son Joseph C. Gadsby, one of the defendants, $1,000 and a house of the value of $3,900, and to his son Charles J. Gadsby, another defendant, two houses of the aggregate value of $5,600, subject, however, according to the terms of the will, to a life estate in his wife, the mother of the three sons, and provided that the remainder of his estate should be divided equally among these sons. The plaintiff was named executor of the will and qualified as such.
The plaintiff in his individual capacity brought this bill in equity in the Superior Court against his brothers, hereinafter referred to as the defendants, joining himself, as executor of his father’s will, as a party defendant — as to which joinder no question is now raised — alleging an agreement of the three brothers that, the mother having died, the father’s estate should be distributed among them equally and praying that "a special master be appointed to sell ... or to value, the real estate received by the defendants and that thereupon an accounting should be had between the plaintiff and the defendants, based upon the net proceeds of such sale or upon the valuation of said master, so that the agreement for an equal distribution of the estate shall be accomplished.” There was also a prayer
The master found the facts as above set forth. He found also that it was the intention of the testator “to make as equal a distribution of his property as possible between his three sons”; that each of them “had knowledge of the will . . . [the testator] had made”; that after the death of the mother the defendant “Joseph C. Gadsby suggested to the plaintiff that the intention of the father to leave his property equally to each would be defeated as the real estate devised to [the defendant] Charles J. Gadsby would be relieved of the life estate of the mother and ... requested the plaintiff to speak to the father about changing his will so as'to effect an equal distribution of the estate . . . that at this time on the advice of the physician attending the father that on account of the father’s condition, it would be inadvisable to discuss this matter with him, the plaintiff and the defendants orally agreed between them that if the matter was not mentioned to the father and the will was probated and administered according to its tenor, the real estate devised to the defendant Charles J. Gadsby and the real estate devised to the defendant Joseph C. Gadsby would be sold as soon as possible and an accounting had so. that an equal division of the whole estate between the three brothers would be accomplished and that the plaintiff agreed to make no charge for his services in administering the estate.”
The master found that both “father and mother were seriously ill and the mother’s death . . . was not made known to the father on account of his serious condition” and that he “died . . . without notice of his wife’s decease.”
First. On the facts found by the master, there was an agreement for the transfer, after the death of the father, of such parts of the proceeds of the sale of the defendants’ expectancies as devisees under his will as would be "necessary to effect an equal division of the whole estate among the three brothers. Such an agreement is binding upon the parties if it meets the usual requirements of a contract and, in addition, certain special requirements due to its peculiar nature. Not only must the defendants’ promises be supported by sufficient consideration, but the agreement must provide for “adequate consideration” for the performance of these promises, and it must appear that the agreement was “entered into fairly” and that “the bargain is not unconscionable or obtained by oppression or by taking unjust advantage of the necessities” of the presumptive devisees. Jenkins v. Stetson, 9 Allen, 128, 132. See Fitch v. Fitch, 8 Pick. 479, 482; Trull v. Eastman, 3 Met. 121, 123. Compare Boynton v. Hubbard, 7 Mass. 111.
The requirements, above stated, were met by the agreement. The plaintiff’s promise “to make no charge for his services in administering the estate” of his father was sufficient consideration for the defendants’ promises. More
The bargain was not unconscionable nor obtained by reason of any advantage taken of the defendants. Moreover, under the agreement they were to receive adequate consideration for the performance of their promises. Each defendant was to receive from the plaintiff, in exchange for the transfer of his expectancy to the extent agreed upon, a benefit equivalent to one third of a fair charge for administering an estate valued at $44,109.75, of which $34,609.75 was personalty. If the real estate was sold at the valuation placed upon it by the master, the defendant Joseph C. • Gadsby would pay nothing of value for this benefit and would, moreover, receive from the other defendant the sum of $266.66, while the defendant Charles J. Gadsby would pay for this benefit the sum of $433.32, of which $166.66 would be paid to the plaintiff and the remainder to the defendant Joseph C. Gadsby. We cannot say that the benefit derived by Charles J. Gadsby from the settlement of the estate of his father without charge was so inadequate a consideration for the payment, out of the proceeds of the sale of his real estate, of this sum of money — or such lesser or greater sum as might result from the sale of the real estate for a price different from the amount fixed as its value by the master — as to invalidate the contract. Obviously the consideration passing to Joseph C. Gadsby would not be inadequate. In view of these facts, it is un
The agreement did not lack binding force because of the fact that it was made without the knowledge and consent of the father. In several cases in this jurisdiction (Fitch v. Fitch, supra, Trull v. Eastman, supra, and Jenkins v. Stetson, supra) it has been stated that an assignment of an expectancy is valid if, in addition to meeting other requirements, it was made with the knowledge and assent of the ancestor, but in these cases the knowledge and assent of the ancestor were shown and the court was not called upon to decide whether an assignment without such knowledge and assent would have been valid. In Fitch v. Fitch, however, where an assignment to two brothers of the assignor of his expectancy in their father’s estate was in question, it was said that “We deem the allegation of the knowledge of the father, and his consent to the transaction, essential to the validity of the declaration” (page 483), and in Jenkins v. Stetson, it was said, with reference to an objection to the validity of an assignment by a daughter of her expectancy in the estate of her mother to a stranger, that “There might have been force in this objection, if it had appeared that the bond was given and the agreement made without the knowledge or assent of the mother. It might then have been deemed to have operated as a deceit on her, on the principle stated in Boynton v. Hubbard, 7 Mass. 112, 122.” (Page 132.) The statements in these cases were based directly or indirectly upon the case of Boynton v. Hubbard, and are not to be regarded as extending the principle on which it was decided. In that case the assignment was to a stranger and was said to be “a deceit on the ancestor” and “a mere wager” and, consequently, against public policy and “void as well at law
The agreement was not against public policy by reason of the provision therein for the plaintiff’s forbearance to "speak to the father about changing his will.” It is true that the plaintiff, even if not strictly in a fiduciary relation to his father, could not have enforced an agreement, not disclosed to the father, whereby the plaintiff was to be paid for suggesting to the father that he should change his will or that he should not change it. Such an agreement is against public policy, even if no harmful result is shown, because its tendency is necessarily harmful. A suggestion made in accordance with such an agreement is not what it purports to be — disinterested advice. The person making it attempts to
Second. The plaintiff is entitled to relief in this suit. It is, in substance, a suit for specific performance of the defendants’ promises and within the general scope of equity jurisdiction. See Capen v. Capen, 234 Mass. 355, 360. We need not consider whether the plaintiff has an adequate remedy at law, and, if he has, whether this defence, seasonably made, would have been fatal to the suit, for the defence has not been set up. Baker v. Langley, 247 Mass. 127, 132. Nor need we consider whether the contract was within the statute of frauds as “a contract for the sale of lands ... or of any interest in or concerning them,” G. L. c. 259, § 1, (4), as contended by the defendants (see Trowbridge v. Wetherbee, 11 Allen, 361, 364; Gary v. Newton, 201 Ill. 170), for the plaintiff’s forbearance to “speak to the father about changing his will so as to effect an equal distribution of the estate,” in reliance upon the defendants’
The defendants have refused to perform their promises. All conditions precedent to performance by them have been fulfilled. The matter of a change in the will “was not mentioned to the father and the will was probated.” The estate has been administered according to the will except that $150 remains in the hands of the plaintiff as executor and he has filed no final account as such. So far he has made no charge “for his services in administering the estate.” Since the real estate was to be “sold as soon as possible” the contract is to be interpreted as contemplating that such a sale should take place concurrently with administering the estate. The ability of the plaintiff to make a final settlement of the estate in accordance with the will is apparent from the findings of the master. The plaintiff, therefore, was not required to prove that the estate had been fully administered (see Roche v. Fairbanks, 254 Mass. 7, 9-10), but the decree for the plaintiff must make performance by the defendants conditional on concurrent action by the plaintiff in bringing the estate to final settlement and making no charge therefor. See Noyes v. Bragg, 220 Mass. 106; see also Williston on Contracts, §§ 1430, 1440.
Third. There was no error in the interlocutory decree in that it modified the master’s report and confirmed the report as modified. The modification struck out the finding as “to the amount which would be allowed by the Inheritance Tax Division as a fee for administering the father’s and mother’s estate and for services as attorney.” The amount of a proper fee for administering the estate of the father was material on the question of adequate consideration, but the amount which would be allowed by the inheritance tax division as a fee was not material on the question of the proper amount.
It follows that the interlocutory decree must be affirmed,
Ordered accordingly.