In Re Estate of Willey

LORIGAN, J.

This is an appeal by the executors of the last will and testament of Amasa P. Willey, deceased, from an order of the superior court settling their account. The testator devised his property in trust, and selected as trustees the same persons who were appointed as executors of his will (appellants here), and the terms of his will provided that the trustees should make annual payments to certain beneficiaries designated therein, in specific amounts, from the net income of the devised trust estate.

The appellants, as executors, during the course of the administration, but without any order of court, made such payments, aggregating $1,675, incorporated them with other but uneontested items in the account in question, asked to be credited therefor, and that the court settle, allow, and approve the account as presented.

Objections to the allowance of these particular payments were interposed by T. J. Lyons, individually, as grantee and assignee of any interest of O. W. Willey, a deceased son of the testator, in his father’s estate, and also by said Lyons and

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Louisa M. Muirhead, as executor and executrix, respectively, of the last will and testament -of said C. W. Willey, deceased.

The grounds of objection were, that these payments were not disbursements made, as charges or expenses of administration, or as payment of debts, or claims against the estate, or made by order of court, which alone, it is contended, were proper items to be embraced in, and settled and allowed in said account. At the hearing on the settlement of this account the executors offered in evidence a document, executed by said C. W. Willey prior to his father’s death, agreeing, among other things, not to contest any disposition, testamentary or otherwise, which the latter might make of his property, for the purpose of showing that the contestants had no interest in the estate of Amasa P. Willey, deceased, and no right to question the account or its items. The court refused to allow it in evidence, and, after further proceedings, settled the account as to all other matters embraced in it, but disallowed and struck out all of said payments to the beneficiaries under the will, except one of five hundred dollars, made to said C. W. Willey, on the grounds, urged by contestants, that they were not proper items for settlement or approval in an executor’s account, being neither disbursements nor charges or expenses of administration or the payments of debts against the estate.