Coram v. Davis ( 1911 )

Sheldon, J.

The plaintiff alleges in his bill that for his advances made to the defendant Root for his benefit and for that of the other four heirs to the Davis estate for whom Root was acting (hereinafter called the Root group), he had, under the assignments made by the Root group, a lien upon fractional interests of what would be their respective shares in said estate if the will of the elder Davis should not be allowed; that by the agreement of compromise made on April 28, 1893, between the parties in interest, the will, although in form to be allowed, was in reality set aside and shares larger than they could have expected were assigned to the Root group; that by that agreement there was to be allowed to the Root group out of the estate the sum of $500,000, on account of their expenses theretofore incurred in litigation, and that this provision was intended to be a provision for the repayment of the advances so made by the plaintiff, and for the payment of Mr. Ingersoll, who had been employed to represent that group on the promise of a contingent fee. This agreement provided also, in its thirteenth article, that all expenses incurred in carrying it out should be furnished, one half by the parties to it of the first part, and one half by the plaintiff and two others, and provided for their reimbursement out of the estate. A decree was afterwards entered in the Montana court, in which the contest over the will was pending, admitting the will to probate, ordering distribution according to the terms of the compromise agreement and some later agreements not now material, and adopting the agreements of the parties. That court also by a later decree confirmed the agreement of compromise and the later agreements by which contests over the will were settled. The plaintiff alleges also that he then advanced further sums of money which ought, under the agreement, to have been repaid to him out of the estate as well as out of the shares of the Root group. He avers that the assets in the hands of the defendant Leyson, the ancillary administrator of the estate of the elder Davis in this Commonwealth, after paying the amount which has been found due to Ingersoll, and the shares of other heirs upon which the plaintiff has no specific right of charge, are insufficient to meet the plaintiff’s demands, and claims the right to hold the assets that are or should be in the hands of the defendants Davis and Palmer, regardless of distributions thereof which they have made to the distributees of the estate. He alleges also that, after the payment of Ingersoll out of the funds which are available to him, he is. entitled to be subrogated to the equitable lien or charge which it has been decided that Ingersoll has upon the shares of the Root group or parts thereof. Ingersoll v. Coram, 211 U. S. 335. He has joined as defendants the administrators of the Davis estate in Montana and in this Commonwealth, all parties interested in the estate as distributees or their representatives, and all the parties to the agreements of compromise.

1. The first ground of demurrer is for lack of equity. We are of opinion that the plaintiff shows for the payment of his advances made before April 28, 1893, an equitable charge upon the interests in the shares of the Root group, of which he had taken assignments. This is scarcely disputed, and need not be discussed.

These shares or rights could not come into existence, and there would be no fund upon which the plaintiff could have a charge, unless the will of Davis were disallowed; and the will was admitted to probate. But it was merely a formal allowance, and in reality all but a few minor provisions of the will were wholly set aside by the agreement of the parties and the decree of the Montana court made thereon. This has been so decided both by the Circuit Court and by the Supreme Court of the United States. Ingersoll v. Coram, 127 Fed. Rep. 418, and 211 U. S. 335. It was so held in Montana, the State in which Davis had his domicil and in whose courts the proceedings were i, had. In re Davis’ Estate, 27 Mont. 490. We cannot now regard this as an open question.

Can the plaintiff resort in equity to the fund provided by the compromise agreement to meet the expenses thus far incurred in the litigation ? Was this fund or any part of it so far appropriated for the payment of his claim including what might be found to be due to Ingersoll as to give this right to the plaintiff? It was not provided by the agreement that payment should be made to him or to Ingersoll; the parties were “to-have and receive ” it out of the amount which was to be paid by the trustees. But it was set aside for their expenses. It was a means provided to meet these liabilities, a fund out of which they were to make the payments. Under such circumstances a creditor may in equity avail himself of the means of paying his demand which have been thus set apart for the relief' of his debtor and through his debtor for himself. Wiggin v. Dorr, 3 Sumner, 410. Rice v. Dewey, 13 Gray, 47. Demott v. Stockton Paper Ware Manuf. Co. 5 Stew. 124. Harmony National Bank’s Appeal, 101 Penn. St. 428. Dunlap v. O’Bannon, 5 B. Mon. 393. Boss v. Saulsbury, Respess & Co. 52 Ga. 379. Ex parte Dever, 14 Q. B. D. 611. City Bank v. Luckie, L. R. 5 Ch. 773.

The plaintiff for the money furnished by him to carry out the compromise agreement rests upon the provision thereof that this should in part be furnished by him and others and should be repaid out of the estate. It is true, as was said in Elmore v. Symonds, 183 Mass. 321, 326, that a mere personal promise to pay a debt out of a particular fund will not create a lien or equitable charge upon the fund. Christmas v. Russell, 14 Wall. 69. Dillon v. Barnard, 21 Wall. 430. Trist v. Child, 21 Wall. 441. Removal Cases, 100 U. S. 457. In re Butler's Estate, 105 Fed. Rep. 549. Rogers v. Hosack's Executors, 18 Wend. 319. McDonald v. American National Bank, 25 Mont. 456. But this was not a naked agreement to pay the expenses in the manner provided. It was an arrangement by which the persons who were to furnish the necessary money had the right to understand that the funds of the estate, at least so far as those funds should come to the hands of the trustees, were appropriated for their payment. It was an agreement by all the parties then in interest, undertaking to provide for the disposition of the whole estate and engaging that the amounts properly furnished for the carrying out of the agreement should be repaid out of the designated fund. It authorized the custodians of the fund to apply it so far as might be necessary for this purpose. It appropriated the fund for the repayment, and thereby created an equitable charge upon it. This doctrine has been undisputed since the decision of Legard v. Hodges, 1 Ves. Jr. 478. It has been affirmed by this court. Baylies v. Payson, 5 Allen, 473. Pinch v. Anthony, 8 Allen, 536. It has been declared by other courts in elaborate opinions. Ingersoll v. Coram, 211 U. S. 335. Walker v. Brown, 165 U. S. 654. Fourth Street Bank v. Yardley, 165 U. S. 634. Ketchum v. St. Louis, 101 U. S. 306. Fletcher v. Morey, 2 Story, 555. Stranahan v. Richardson, 75 Minn. 402.

But the defendants contend that by the compromise agreement the plaintiff and his associates were to be repaid only such advances as they were required by the trustees to make. This contention is based upon the undertaking of Coram and others subjoined to the agreement that they would “ advance from time to time as required ” by the trustees “ one half of all expenses,” etc. This bound the plaintiff to make only such advances as should be required by the trustees, but it leaves unqualified the provision in the thirteenth article of the agreement that all funds furnished for “ expenses incurred in the carrying out” of the agreement should be reimbursed out of the estate. The plaintiff may well have been unwilling to bind himself without limitation by an independent promise to advanee money without an assurance from the trustees that it was really needed; but the parties to the agreement did not choose to put the limitation upon their promise of repayment. Moreover the covenant of the parties of the first part to furnish one half of such expenses was unlimited, and called for no assurance or requirement from the trustees; and the obligation of repayment to the plaintiff was the same as to those parties. We cannot now for the benefit of the defendants add to their absolute obligation a limiting stipulation not contained in the agreement. The agreement as written must be taken to be the final and complete repository of the intention of the parties to it. Bray v. Kettell, 1 Allen, 80, 83. Howland v. Leach, 11 Pick. 151, 154. Brown v. Fales, 139 Mass. 21, 28.

The bill in no way seeks to overthrow the orders, of distribution made in the District Court of Montana or in the Probate Court here. Indeed, those orders, establishing the funds to which the plaintiff must look and fixing their amount, are the basis upon which, if at all, the bill must be maintained. Until those orders should be made, the plaintiff’s remedy would not be completely available. Even if his rights might have been established and declared before the making of those orders, yet they could not all have been enforced until those orders should be made. Ingersoll v. Coram, 211 U. S. 335, 357. Those orders, if not appealed from, conclusively establish the amounts to be distributed, the parties entitled, and the sums to be paid to each distributee; they are not now. to be attacked. Loring v. Steineman, 1 Met. 204. Crippen v. Dexter, 13 Gray, 330. White v. Weatherbee, 126 Mass. 450. Pierce v. Prescott, 128 Mass. 140, 143. Harris v. Starkey, 176 Mass. 445, 447. Tobin v. Larkin, 187 Mass. 279. Minot v. Purrington, 190 Mass. 336. Cleaveland v. Draper, 194 Mass. 118. But the Probate Court does no more than to determine these questions and to order distribution accordingly. It does not concern itself with assignments or pledges of the distributive shares or with the enforcement of equitable liens thereon. Such questions must be determined in other courts; and in the case at bar the questions raised are for a court of equity to settle. Lenz v. Prescott, 144 Mass. 505, 515. Nor is it a bar to maintaining this bill that part of the property involved may be in Montana. Ricketson v. Merrill, 148 Mass. 76, 83.

2. The reasons already stated show that the plaintiff has not an adequate remedy at law. Ilis claim to charge for his payment the whole or some fractional parts of any of the distributive shares of this estate, or any part of the trust fund already referred to, or to reach and apply any part of that fund in the hands of distributees who have received it from the trustees either as volunteers or with notice of the plaintiff’s equitable rights, plainly can be enforced only in equity. Lenz v. Prescott, 144 Mass. 505. Ingersoll v. Coram, 211 U. S. 335. The bill does not state a case in which the plaintiff has trusted merely to personal promises and must be left to rely upon them, as in Hussey v. Arnold, 185 Mass. 202, 203, and Taylor v. Davis, 110 U. S. 330. We need not consider whether, if that were the case, the bill could be maintained under the prayer for general relief or otherwise under R. L. c. 159, § 3, cl. 7.

3. It is said also that the bill is multifarious. So far as it seeks merely to recover the plaintiff’s advances to the Root group and the amounts furnished by him to carry into effect the compromise agreement, this objection cannot be sustained. The bill aims at one object, the reimbursement of the plaintiff by the application of certain funds, in one or another of which all the defendants are directly or indirectly interested. The fact that different means are sought for the enforcement of one equitable right, out of the whole or different parts of one estate, does not make the bill multifarious. Parker v. Simpson, 180 Mass. 334. Dunphy v. Traveller Newspaper Association, 146 Mass. 495, 499. Lenz v. Prescott, 144 Mass. 505, 512, 513. Commercial Mutual Ins. Co. v. McLoon, 14 Allen, 351. As in Andrews v. Tuttle-Smith Co. 191 Mass. 461, it is desirable that all the claims of the plaintiff which affect the administration of the estate should be disposed of in one suit. All of the defendants are properly made parties. Attorney General v. Parker, 126 Mass. 216. Cassidy v. Shimmin, 122 Mass. 406. Graves v. Corbin, 132 U. S. 571, 576, following Brinkerhoff v. Brown, 6 Johns. Ch. 139. Colbert v. Daniel, 32 Ala. 314. The language of Devens, J., in Lenz v. Prescott, 144 Mass. 505, 513, is applicable: “ 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 investígation 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.”

The plaintiff avers also that he has purchased the interests of two of the distributees of the estate, and asks that the net amount of their shares be ordered to be paid to him. This alleged right too is a part of the general right which the plaintiff claims to have acquired in the estate and its administration. It is within the reason of the decisions last referred to. It is for the interest of all parties that the whole question of the plaintiff’s rights in the estate should be settled once for all in one suit. Noble v. Joseph Burnett Co. 208 Mass. 75.

4. If the bill shows that the plaintiff’s whole remedy is barred by our statute of limitations, this is ground of demurrer. Fogg v. Price, 145 Mass. 513, 516. But it is not material to determine whether an action at law for the plaintiff’s advances made to the Root group before April 28, 1893, would be so barred. Those defendants have not cared to raise the question upon the demurrers. If they choose to waive the defense, it is not for the demurring defendants to set it up. Moreover, as we have seen, the plaintiff’s equitable remedy against the fund here was not complete until proper action had been taken in the Probate Court; it would be hard to say that he was bound to bring his bill earlier. The same considerations apply to money furnished by the plaintiff since the date last mentioned under the compromise agreement. Nor need he seek to be reimbursed for what must be paid to Ingersoll until that liability had been established. So far as this defense depends upon the Montana statute of limitations and the local law of that State, this is matter of fact, of which, as it is not stated in the bill, we can have no knowledge except by plea and proof, and is not a ground of demurrer. And the bill is brought to enforce security which the plaintiff claims to hold by reason of equitable liens or charges. We need not consider whether such equitable security would fall with the indebtedness if the debtors should maintain this defense, or whether the plaintiff still could enforce his equitable security though the action at law was gone. Shaw v. Silloway, 145 Mass. 503, 506. Townsend v. Tyndale, 165 Mass. 293. This is not a good ground of demurrer.

5. For substantially similar reasons, it cannot be said that the bill shows such laches as to bar the plaintiff. The bill seems to have been brought with reasonable expedition after the decree of the Probate Court had been made. There is nothing to show that the rights of the defendants have been injuriously affected by delay. There is no fixed rule as to what constitutes laches; it depends upon the circumstances. Snow v. Boston Blank Book Manuf. Co. 153 Mass. 456, 458. See Sunter v. Sunter, 190 Mass. 449; Manning v. Mulrey, 192 Mass. 547; Hill v. Mayor of Boston, 193 Mass. 569; Moseley v. Bolster, 201 Mass. 135, The bill upon its face does not come within the doctrine of such cases as Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490, 494; Dunphy v. Traveller Newspaper Association, 146 Mass. 495; Willard v. Wood, 164 U. S. 502; Holder v. Hillson, 170 Mass. 466; Doane v. Preston, 183 Mass. 569; Sawyer v. Cook, 188 Mass. 163; and Marvel v. Cobb, 200 Mass. 293. See Hawkes v. Lackey, 207 Mass. 424. It may be that when the facts shall have been developed the plaintiff’s case will fail in whole or in part by reason of laches or of the statute of limitations, if those defenses are set up, but we cannot say that either of them is shown by the averments of the bill.

We have not considered whether the agreements under which the plaintiff advanced money to the Root group could be avoided for champerty or maintenance, as that question has been neither raised nor argued.

Bemurrers overruled.