| Mass. | May 12, 1887
The first ground of demurrer relied on by the defendants is, that the bill is multifarious. The object of the bill evidently is to collect a debt due from Welcome A. Greene to the plaintiff, Welcome having assigned to her, as security therefor, all his interest in the estate of his uncle, Thomas A. Greene, whether the same was derived directly under the will of said Thomas, or through the will of Roscoe Greene, or by inheritance from Alfred Greene. Roscoe -and Alfred Greene were brothers of Welcome, and, like him, residuary devisees under the will of Thomas; both died before the assignment, one testate and the other intestate. This assignment was made subject to a previous assignment to Mr. Prescott, which was to secure the payment of a debt due from the defendant Bird to the estate of Thomas, the surplus remaining by the terms of the assignment to be paid to Welcome, his administrators or assigns. The assignment to Prescott, was dated before the death of either Roscoe or Alfred, but the defendants Welcome, Bartlett, the administrator of the estate of Thomas, and Prescott, as the bill alleges, all deny that the plaintiff has any rights by virtue of her assignment, alleging, that the previous assignment operated to convey to Prescott all Welcome’s interest in the estate of Thomas, including that to which he became entitled by the death of his brothers, and that it was an absolute conveyance, and left in Welcome no assignable interest.
There are presented, as the defendants contend, three cases in a single bill. A claim for the surplus of the legacy of Welcome under the will of Thomas, after payment of the debt due from Bird, in which only Welcome, Bartlett as administrator, Prescott, and Bird can be interested; a claim for Welcome's legacy un- ' der the will of Roscoe, in which no one can be interested but the plaintiff, Charles Greene, the executor of the will of Roscoe, and Welcome; and a claim for Welcome’s distributive share in the
We are not prepared to concur in this. As between the plaintiff and Bartlett, the administrator of Thomas, Welcome, and Prescott, these claims form but a part of one transaction. The assignment to the plaintiff, assuming it to be valid and to embrace all the claims stated, entitled her to receive from Bartlett all the surplus of the immediate legacy to Welcome* and from the representatives of Roscoe and Alfred the amounts coming to Welcome from the estates of his brothers. By an agreement set forth in the bill, made between the executor of Roscoe and the administrator of Alfred on the one side, and the defendant Bartlett on the other, Bartlett has received from them certain amounts due to Welcome from the estates they represent, or, more properly, Bartlett has by their agreement retained them, and, without paying them over to Welcome or to the executor and administrator respectively of his brothers, has paid them directly to Prescott. The plaintiff has a demand growing out of an assignment by which every defendant was affected, and their various interests are so blended that it would be impossible to separate the investigation of them with convenience. It is not indispensable that all the parties should have an interest in all the matters contained in the suit; it is sufficient if each party has an interest in some matters in the suit, and that they are connected with the others. Even if one is a necessary party to some portion only of the case, the bill is not therefore necessarily multifarious. Story, Eq. PI. § 271 a. All the_ parties defendant except Bird practically deny the right of the plaintiff under her assignment, and the transaction by which Prescott has received the money above the debt due to Bird has been participated in by all the defendants except Bird.- It does not appear that Prescott makes any claim to these funds, except by reason of the original assignment to him, but he has paid them to Welcome. Bird is a necessary party throughout, as he is interested in having his debt correctly determined, and the assignment to the plaintiff is subject to that debt, so far
The plaintiff could not have, as the defendants contend, an adequate remedy at law, if the funds to which she had a right to look have been wrongfully paid to Prescott by reason of a misconstruction of the effect of the assignment to him, or for any other cause. The suggestion is, that a series of suits might be brought against the representatives of the three estates. In view of the mode in which all parts of the transaction are connected by the assignment itself to the plaintiff, and especially by the arrangement made between the representatives of the three estates, and by the payment from each through Bartlett to Prescott, a bill in equity affords the only appropriate remed3r, in order that a multiplicity of suits may be prevented, that the rights of all parties may be adjusted and settled, and that all persons interested in the subject matter may be bound by the decree, and the bill cannot be held to be multifarious.
The defendants further urge that the interest which Welcome and his brothers had in the estate of Thomas was a contingent interest only; and that, as the tenant for life was living at the time of the assignment to the plaintiff, it was invalid, as the estate sought to be assigned was not included in the class made assignable by the Pub. Sts. c. 126, § 2. There is no occasion to consider the effect of this statute as to contingent estates, as the interest of Welcome and his brothers in their uncle’s estate was vested. Upon this point, the case of Gibbens v. Gibbens, 140 Mass. 102" court="Mass." date_filed="1885-09-12" href="https://app.midpage.ai/document/gibbens-v-gibbens-6421762?utm_source=webapp" opinion_id="6421762">140 Mass. 102, is decisive. The testator, Thomas A. Greene, does indeed provide that, if any of his nephews should die leaving issue before the reception of the bequest, such issue should be entitled to one share by right of representation. There may be a vested interest determinable upon the happening of a contingency. If
The defendants further urge, that, if the plaintiff has any rights, they can be secured only through the Probate Court. The bill prays for an account of the personal estate of the testator, Thomas, in the hands of his administrator Bartlett, and of the shares to which Welcome is entitled in the estate of Thomas, as legatee of Roscoe, and as an heir of Alfred. We do not understand that the plaintiff seeks to transfer the settlement of these accounts into this court. ¡Nor could the bill be maintained for that purpose, as the Probate Court has exclusive original jurisdiction of all matters pertaining to the settlement and distribution of estates. The principal object of the bill is to ascertain the validity and the construction of the assignment under which the plaintiff claims, and for this purpose it may be maintained. The Probate Court does not take cognizance of assignments made by legatees or distributees of their interests, but deals only with those primarily entitled to the legacies or distributive shares. Pond v. Pond, 13 Mass. 413" court="Mass." date_filed="1816-10-15" href="https://app.midpage.ai/document/pond-v-pond-6404503?utm_source=webapp" opinion_id="6404503">13 Mass. 413. Procter v. Newhall, 17 Mass. 81, 93. Osgood v. Breed, 17 Mass. 356. Hancock v. Hubbard, 19 Pick. 167. Knowlton v. Johnson, 46 Maine, 489. Wood v. Stone, 39 N. H. 572.
The bill does not set forth that the accounts of the representatives of the three estates involved have yet been settled finally in the Probate Court. While, until this is done, it may not be possible to determine all that is due to the plaintiff, under her assignment, from either estate, if anything, or what sums shall be finally paid by the estates respectively, she is still entitled to maintain the bill to restrain the defendants from paying over to Welcome any moneys now in their hands, or which may hereafter come into them, to which she may be equitably entitled. Should she establish the validity of her assignment and notice to the defendants thereof, the bill should also be retained, in order that, when it is ascertained by proper decrees of the Probate Court, and an accounting there, what is due to Welcome from