
    AUGUSTUS P. LORING et al, TRUSTEES, PETITIONERS.
    Middlesex,
    April, 1900.
    
      Will — Compromise — Title Thereunder.
    
   Title in tbis case is claimed by tbe petitioners as trustees under the will of Horace A. Lothrop, as modified by a compromise agreement in the Supreme Judicial Court under the provisions of Chapter 142 of the Public Statutes. The examiner reports that title under the will is not in the petitioners, but in the heirs of the decedent, and that the compromise is a mere agreement which has not yet been carried out. The examiner’s point seems to be well taken.

Horace A. Lothrop died December 11, 1898, testate, leaving all of his estate to his widow for life, with full power of sale, remainder in equal shares to all his children. His will was disallowed by the Probate Court and, pending an appeal taken by the executrix, an agreement of compromise was executed by all parties in interest, and a petition to authorize the same filed in the Supreme Court under P. S. Chap. 142, Sec. 14-17. The agreement for compromise provided that the will should be admitted to probate subject to certain modifications; among them, that the executrix resign, two administrators with the will annexed be appointed, and that all the residue of the estate after the payment of debts and legacies be paid over to the present petitioners upon certain trusts set forth in full in the agreement. On March 8, 1899, a guardian ad litem appointed in accordance with P. S. Chap. 142, Sec. 15, having assented to the agreement, a final decree was entered that the will be allowed as modified by said agreement; that the persons as therein agreed be appointed administrators e. t. a., and that they “ after said compromise has been duly made, have power to carry out said compromise and to execute all instruments for the carrying out thereof.”

The examiner suggests that it seems to be in accordance with local practice to assume that title passes under the will subject to the limitations of such a compromise, in cases where the compromise is incorporated according to its terms into the will itself. Burbank v. Burbank, 152 Mass. 254. All of the steps in the Burbank case, including the framing of the final decree, seem to have been taken on the theory that it was a probate proceeding. The agreement was as to how the will should be “ construed ”; the decree affirmed ” the decree of the Probate Court, authorized partition and division in the Probate Court in accordance with the terms of the agreement, and determined that the several estates disposed of by the will should “ vest ” and be held according to the tenures and the respective parties as agreed, as devisees.” The proceeding under Public Statutes Chapter 142, however, is not a probate proceeding. It is by its terms (Section 14) a bill in equity; it binds the parties to the proceeding and, through the appointment of a guardian ad litem, other contingent or future interests which may be affected, and authorizes the carrying out of the compromise agreement, but it does not affect creditors (Section 16). Much less does it set up á new will which the testator never made, under which title will pass to trustees and on trusts which the will neither named nor contemplated.

The power to dispose of property by will is strictly guarded by statute, and the courts will not give testamentáry effect to an agreement or instrument that is not clearly incorporated into the terms of the will itself. P. S. Chap. 127, Sec. 7. Thayer v. Wellington, 9 Allen, 283. Newton v. Seamen’s Friend Society, 130 Mass. 91. Where a trust not declared in the will is established by a Court of Chancery against the devisee, it is by reason, of tbe obligation resting upon tbe conscience of tbe devisee, and not as a valid testamentary disposition by tbe deceased.” Olliffe v. Wells, 130 Mass. 221.

Whatever tbe general local practice may be,-tbe proceedings in the case at bar seem to have been in accordance with tbe statutes. ' Tbe agreement of compromise made by tbe parties bas been ratified, and tbe court bas authorized its being carried into effect. Until and unless that is done, however, title remains in tbe heirs subject to tbe life estate of tbe widow. Tbe court having recognized tbe existence of a trust, clearly bas tbe power to order or authorize such conveyance as may lie necessary therefor, and to appoint agents to make tbe conveyance. Felch v. Hooper, 119 Mass. 52. In this case tbe administrators with tbe will annexed are tbe agents appointed by tbe decree of tb'e Supreme Court to make conveyance to these petitioners, and such deed should be executed. After that is done there may be a decree for petitioners.  