Devore's Estate ( 1925 )

Argued April 28, 1925. The Orphans' Court held that the agreement among the legatees and devisees of the testator in favor of Henrietta Culp, a married daugther of the testator, was in effect an assignment of all of the interests of the brothers and sisters of Mrs. Culp in the legacy which the latter received through her father's will; the effect of which was to vest in her and her heirs all of the property with respect to which she took a life estate under the will. This conclusion was reached because the agreement was the settlement of a family dispute; the consideration therefore being the waiver of a contest over the decedent's will; the object of the agreement being the creation of equality of distribution among all parties interested in the estate. The court correctly held that the agreement did not operate on the trust created in favor of the latter, for it was within the power of the testator to make such disposal of the property over which he then had control as he saw fit, and having made provision for the protection of the fund against the improvidence of the cestui que trust or her husband, it was not within the power of the other legatees to abrogate or modify that provision. The agreement however so far as it related to rights existing in the parties thereto was one not contrary to public policy nor forbidden by statute. The brothers and sisters who had an interest in Mrs. Culp's legacy contingent on her death during the life of her husband could lawfully dispose of it. They were all sui juris. The form of the agreement and the evidence taken fully warrant the conclusion that they were aware of the nature of the agreement and intended to execute it for the purposes therein expressed or necessarily inferable from the, language of the instrument and the situation of the parties. That it was intended to create a waiver of any claim which the brothers and sisters had in the legacy to Mrs. Culp and to vest in her and her heirs all of the property involved in this proceeding seems evident. The words of the agreement are not those used in the formal assignment of a property right, but show the purpose of the parties. Particular forms of expression are not required; any language which indicates the intention is sufficient. The parties being members of a family confronted by a prospect of a will contest and desiring to avoid an inequality of division of the estate mutually agreed to enlarge the interest therein of a sister. This could only be done so far as the other parties were concerned by surrendering their respective contingent remainders. If they did not purpose to do this their agreement had no meaning. They intended to relieve the legacy of Mrs. Culp from the contingency which affected it and to give it the same destination which it would have had if the trust had not existed. This they accomplished by the writing in question. Equity will support assignments of contingent interests and expectancies provided the agreements are fairly entered into and not against public policy: Day Sharpe's Assigned Est., 21 Pa. Super. 118; Ralston's Est., 172 Pa. 104. It will be observed that the contracting parties had a present interest in the estate. The maker of the will was dead. The situation was different in Lennig's App.,182 Pa. 485, to which the appellants direct our attention. There the parties were agreeing about the property of the testatrix before her death. The contract had nothing therefore to operate on except a naked expectation. The will was subject to change by the testatrix at any time. The mutual promises of the parties here induced by the circumstances, constituted a sufficient consideration: Harter v. Bomberger, 47 Pa. 496; Ford's Est.,185 Pa. 420; Brenneman's Est., 17 Pa. Super. 75.

We are not impressed by the contention that the agreement cannot be supported because of laches. The present claimants are the husband and children of Mrs. Culp. Their right is asserted at the first opportunity after the death of the latter. This part of the decedent's estate is in court for the first time for distribution. The appellants have lost no right from lapse of time. As the agreement operated in favor of the heirs of Mrs. Culp, it is not apparent that there has not been reasonable diligence in asserting their right. The learned judge of the Orphans' Court has clearly and forcefully set forth the views of that court. Our discussion need not be further extended.

The decree is affirmed at the cost of the appellants.