Peterson v. Peterson

PRESTON, J.

Appeal by administrator with the will annexed from decree of partial distribution.

Mary Johnson died testate March 12, 1922. Probate proceedings were held in abeyance for some ten years awaiting the termination of litigation growing out of the probate of the estate of her deceased husband. The last will and testament of said Mary Johnson bequeathed to petitioners and respondents here, in respective proportions, the sum of $6,000. On December 12, 1931, an inventory and appraisement was made showing that the entire property of the estate consisted of $1319.23 in money, household furniture valued at $500 and 80 shares of capital stock of Oulton

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Land Company, valued at $150 per share ($12,000)—a total of $13,819.23. Said stock was not listed on any exchange and could not readily be sold. In February, 1931, respondent cash legatees and appellant administrator had executed a written agreement whereby, in consideration of said administrator waiving his right to appeal from the decree of distribution entered in the matter of the above-mentioned estate of the deceased husband of this decedent Mary Johnson, said respondent cash legatees agreed to accept in compromise and in lieu of their said $6,000 cash legacies, 36 shares of said stock to be divided among them in respective proportions. Pursuant to this agreement, respondents, on December 29, 1931, duly filed their petition for such partial distribution, alleging that the estate was but little indebted and that the 36 respective shares of stock might be allowed to them without loss to the creditors or injury to the estate or to any person interested therein.

When the matter was called for hearing, respondents introduced in evidence all the papers, pleadings and files in the matter of said estate, including the above-mentioned inventory and appraisement and also an order for allowance to one Daniel A. Ryan of the sum of $2,500 on account of extraordinary services rendered by him to the administrator, plus $375.60 for expenses incurred. Counsel for appellant administrator opposed the granting of the petition for partial distribution, stating that the estate was indebted to the extent of $2,600 for fees and expenses of administration and $1500 for other debts. Counsel for respondents, in opposition to this statement, introduced the register of actions in said matter, containing all the papers and documents filed therein, and informed the court that there were no claims on file against the estate other than the said claim for extraordinary counsel fees.