PRISCILLA WILLCUTT & another vs. OLIVER PRESCOTT, JUNIOR, trustee, & others.

WHITTEMORE, J. These are the plaintiffs' appeals from an order of the single justice sustaining demurrers and from the final decree dismissing the bill in equity for declaratory relief. The bill and attached copies of documents show that the plaintiffs are children of Charles D. Willcutt who died January 1, 1952. Charles was the nephew and one of the heirs of Mary D. B. Hooper who died testate on March 29, 1924. The plaintiffs ask declarations in respect of a compromise agreement made on April 11, 1934, by their father and the other "then heirs" of Mary, with the trustee under

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the nineteenth clause of Mary's will which left the residue of her estate to found and support a home for the relief of aged Protestant couples, or to pay the fund to a corporation fitted to carry out the purpose. The compromise agreement gave each of the heirs, for life, one fifth of eighty per cent of the net income and made a cy pres provision for "the remainder of the income." It was adjudged just and reasonable and was approved in a decree entered July 7, 1934, in proceedings brought in the Supreme Judicial Court, to which the trustee, the "then heirs," and the Attorney General were parties.

The bill asserts that the compromise agreement was not binding on the plaintiffs for the reasons that they were not parties and a guardian ad litem was not appointed to represent them although they had a future contingent interest. It implies that there was no general charitable intent in article nineteenth and avers that the trust has failed and that the trust property should be distributed "to the present heirs at law." It asks declarations in accord with these contentions.

The demurrers of the present trustee under Mary's will and the two surviving "then heirs" specify that the bill states no facts forming a basis for a declaratory decree; that the decree of July 7, 1934, conclusively settled the subject matter of the bill as to all parties having any interest in the residue of Mary's estate, and the bill shows that the plaintiffs were not named in Mary's will and were not heirs at law or next of kin at her death or on April 11, 1934, or July 7, 1934, and on those dates had no interest in the residue or contingent interest in Mary's estate and there was no occasion for appointing a guardian ad litem for them; that the plaintiffs' father executed the compromise agreement and accepted it in full satisfaction of all claims to the residuary estate and the residue has been used for the purposes set forth in the agreement.

The demurrer of the Attorney General specifies that the bill fails to set forth with substantial certainty facts which would entitle the plaintiffs to relief.

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The bill shows no invalidity in the compromise agreement of April 11, 1934, and the decree of July 7, 1934. The statutory requirements were met. [Note 1] The plaintiffs are not included among Mary's heirs for purposes of the compromise agreement and the decree thereon. If and whenever the trust under article nineteenth failed, the property, by intestacy, would belong to the heirs of Mary determined as of her death. Old Colony Trust Co. v. Johnson, 314 Mass. 703, 711-712, and cases cited. The only interests of children of Charles in property formerly of Mary, or of the trustee, would be in the property after it passed to their father or to his estate. These were not "future contingent interests" (G. L. c. 204, Section 14) in the trust property or Mary's estate. The 1934 decree rightly adjudged that there were "no minors . . . who have any interest in the subject matter, and that there are no future contingent interests in the estate of Mary D. B. Hooper." The Attorney General rightly represented the interests of persons who might be benefited by the charitable trust. G. L. c. 12, Section 8.

On the asserted facts the agreement and decree are in full force and effect and bar the examination asked by the plaintiffs to determine if error underlay them. Woodard v. Snow, 233 Mass. 267, 274. Newburyport Soc. for Relief of

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Aged Women v. President & Fellows of Harvard College, 310 Mass. 438, 442-443. Beede v. Old Colony Trust Co. 321 Mass. 115, 121. Manganiello v. Caggiano, 338 Mass. 542, 545.

The decree which sustained the demurrers reflects the correct determination that no declaration in favor of the plaintiffs can be made on the averments of the plaintiffs. But we think it cannot be ruled, as that decree necessarily does, that the plaintiffs have failed to state a case presenting a controversy proper for determination under the declaratory procedure. The allegation of controversy is in general terms only but it is implicit that the parties are at issue in respect of the plaintiffs' contentions. This is therefore the usual case in which a declaratory decree should be made. See County of Dukes County v. New Bedford, Woods Hole, Martha's Vineyard & Nantucket S.S. Authy. 333 Mass. 405, 406, and cases cited. Vasilakis v. Haverhill, 339 Mass. 97, 101. Compare Brown v. Neelon, 335 Mass. 357. There are no facts in dispute and there is no occasion for a hearing. The decisive issue has been presented in full. See Smith v. Board of Appeals of Plymouth, ante, 230, 234-235.

The interlocutory and final decrees are vacated. A decree is to enter adjudging that the compromise agreement dated April 11, 1934, and the decree of July 7, 1934, complied with G. L. c. 204, Section 14, and may not be attacked by the plaintiffs.

So ordered.