Phelps v. Fitch, 178 Mass. 442

178 Mass. 442 | Mass. | 1901

Loring, J.

We are of opinion that by the true construction of the agreement of compromise the plaintiff is entitled to the balance of one half of the net residue of the estate left after paying to the defendants, other than the defendant Fitch, the sums specified in the agreement as the sums to be paid to them. For convenience we shall hereafter speak of the defendants other than Fitch as the defendants.

The agreement in question is a compromise of a controversy as to the validity of the will under which Fitch was residuary legatee; it provided that that will should be admitted to probate, and that Fitch’s residue should be divided equally between Fitch, party of the first part, and the parties of the second part, who were the plaintiff (the sole heir and next of kin of the testatrix) and the defendants, who apparently had claims as creditors or legatees under previous wills. The agreement was drawn on the basis that one half of the net residue would amount to $30,000; it provided that certain specified sums should be paid to the defendants, which sums, including the personal property to be taken by Harriet M. Whitcomb, amounted to $16,500; it then provided that $13,500 (which it is apparent is found by deducting from $30,000 the $16,500 just mentioned) should be paid to the plaintiff, “ and also the excess of said one-half said rest, residue and remainder over and above thirty thousand dollars.” The conclusion that the plaintiff was to have all the increase in valuation of the estate in case it turned out that one half of the net residue of it was more than $30,000 is borne out by several facts. In the first place, the plaintiff was “ the only heir at law and next of kin ” of the testatrix, while the defendants, who with the plaintiff constituted all the parties of the second part, for whom one half of the net residue was set aside in the agreement of compromise, were “ family friends or servants ” of the testatrix, that is to say, persons who had no claim to share in the estate proportionately with others. Moreover it directly appears that the $6,000 to be paid to the defendant Patton were to be paid for services rendered by him as an attorney at law; and it also appears that John B. Manning and Jane Dignan were persons “claiming under prior wills of said deceased.” Again, it is expressly provided that, in case articles selected by Harriet M. Whitcomb did not amount, at their appraised valuation, to $1,000, the balance should go to the plaintiff; and so again, in case the $4,000 paid to the defendant Patton in trust to pay Jane Dignan $40 a month during her natural life was not needed in whole for that purpose, “ the balance of said principal ” was to be paid to the plaintiff.

It is apparent, therefore, that the agreement of compromise undertook to provide for the distribution of this half of the residue on the assumption that it would amount to $30,000 ; acting on that assumption, it provided that specific sums were to be paid to the plaintiff and to the defendants, the amount to be paid to the plaintiff being the balance ascertained by deducting from $30,000 the amount found by adding together the sums to be paid to the defendants. It then provided for the contingency of this half amounting to more than $30,000, and the provision made was “ the excess of said one half said rest, residue and remainder over and above thirty thousand dollars” should be paid to the plaintiff. It is apparent that all the interest the defendants had under the agreement of compromise was to be severally paid the respective sums mentioned therein, at the time when, the payments should be due.

The defendants contend that the conveyance of one half the residue of the estate to be made by the residuary legatee, on the expiration of the time for an appeal from the decree of the Probate Court allowing the will, made them (the defendants) together with the plaintiff tenants in common of one half the residue as it then existed, and that they are entitled to share in the increase of the fund in the proportions in which they then held the fund as tenants in common ; and that unless this meaning is given to this conveyance it is a nugatory act. But we are of opinion that whatever the increase of the value of the property during the time that it was to be held by the executor for the settlement of the estate might be, they were entitled to receive only the sum mentioned in the contract at the time when their share of the residue was to be paid over.

It is apparent that the purpose of the conveyance, which by ■the terms of the agreement of compromise was to be made by the residuary legatee in the case at bar on the expiration of the time for an appeal from the decree of the Probate Court allowing the will, was to give to the parties of the second part one half the net residue, the whole of which vested in Fitch as residuary legatee by the allowance of the will; and that this was the whole effect of this transfer to the plaintiff and to the defendants “to be held by them respectively in the same . manner and in the same shares or proportions as the said one half of the said residue is hereinafter stipulated to be paid to them respectively ” ; it gave to the plaintiff and the defendants the right to their share of the cash or the securities constituting the residue of the estate when the time for distribution should arrive. It follows that all the interest the defendants had under the agreement and under the' conveyance of one half the net residue provided for in the agreement, was to be paid the several sums mentioned, when the time for distribution of the residue came, and that time was not until the executor in the regular course of proceedings had an opportunity to pay the debts and specific legacies and to ascertain the residuum. This ordinarily would be at the expiration of two years from the time of his appointment. It appears that there was no increase in value of the property in the hands of Fitch after the expiration of two years. The question whether if there had been-such an increase the defendants have such an interest in the .property as to entitle them to share in it, does not arise in the case, and it is unnecessary to consider it.

The defendants also contend that the provision that in case one half the net residue turned out to be less than the $30,000, “ each and every payment hereinbefore to be made out of said one half shall be abated pro rata” shows that the construction stated above is not correct. We do not think so, but on the contrary we think that that provision represents the trade which ■ was made to cover that contingency, and does not affect the construction which we have given to the express provision that the plaintiff was to have the “ excess,” in case one half turned out to be greater than -$30,000.

The defendants’ contention that they are entitled to interest on the sums to be paid to them remains to be disposed of. They contend that they are entitled to interest on these sums on the same principle on which interest is paid on a legacy. But interest is paid on a legacy after the expiration of one year from the decease of the testator, as an incident of the legacy, not for wrongful detention of money due. Kent v. Dunham, 106 Mass. 586. Ogden v. Pattee, 149 Mass. 82. Welch v. Adams, 152 Mass. 74. In this case the sums to be paid to the defendants were not sums paid as legacies but were sums paid as part of the residue; there can be no interest in a part of a residue on the expiration of one year, and interest can be recovered in the ease at bar only on the ground that the money was wrongfully detained by the executor, and is to be paid by him out of his own property. In this case the money was not wrongfully detained. When the time for distribution of the residue of this estate arrived, these defendants did not demand payment of the sums due to them; their contention at that time was that they were interested proportionately with the plaintiff in one half of the residue, and they entered into a contest with the executor as to what the amount of one half of the residue was. That contest was ended on July 18, and on that day what was due to the defendants was paid or transferred to them.

A decree should be entered declaring that the plaintiff is entitled to the fund in court, and directing the defendant Fitch to transfer to her six shares in the capital stock of the Michigan Central Railroad Company.

So ordered.