The agreements set out in the case, although inartificially expressed, furnish clear evidence of the intention of the parties, which was to provide an amicable and speedy settlement of the estate. Together they constituted a single transaction, and each was a sufficient consideration for the other. Abial's agreement amounted to an equitable assignment to the heirs of his interest in the estate in excess of $10,000, in case the will should be set aside, in consideration of the heirs' agreement to pay Madjie the amount named in the legacy to her. Peterborough Savings Bank v. Hartshorn, 67 N.H. 156. When the will was subsequently set aside, these agreements became binding; but they are not finally enforceable until due administration has been had upon the estate. The claims of the parties are equitable, and while they remain unsatisfied they afford ample ground for the protection of a court *Page 324 equity. As the probate court has no jurisdiction to determine the validity of an equitable assignment among the heirs (Gage v. Gage, 29 N.H. 533, Wood v. Stone, 39 N.H. 572, 1 Woern. Admn., s. 151), a bill in equity "is a reasonably necessary process and convenient procedure for speedily and economically establishing" the rights of the parties. Tasker v. Lord,64 N.H. 279; Bisp. Eq., s. 162, et seq.
It is argued by the defendants that Abial's contract is void because he was the executor of his wife's will and could not, on grounds of public policy, agree to the setting aside of the will. But the agreements do not show that he was to neglect or omit any duty incumbent upon him as executor in connection with the probating of the will. The setting aside of the will, although expected by all parties, was merely an event upon the happening which the contract took effect. Abial did not agree that the will should be set aside, or even that he would favor such a decree in the probate court. In fact, one part of his agreement contemplated a decree sustaining the will. Moreover, it appears that there was no pecuniary inducement for him to desire a decree disallowing the will. As the surviving husband of the testatrix, he was entitled, upon waiving the provisions of the will in his favor, to one half of the estate. P.S., c. 195, s. 12. No principle of public policy was violated by the agreements of the parties, and the defendants claiming through Abial are bound thereby.
The fact that Abial assumed the payment of certain sums of money to certain third parties, none of whom after the will was annulled had any interest in the estate or were parties in fact to the settlement, does not make it necessary that they should be parties to this bill, which relates to the final disposition of the estate in the hands of the administrator, Heard. His payment of the $10,000 to Abial's administrator will relieve him of all liability therefor under the existing state of facts.
As it is not controverted that the will was set aside upon a hearing in the probate court, of which it is to be presumed all parties in interest were duly notified, that fact, if it is not sufficiently alleged in the bill, may be incorporated therein by an amendment. The demurrer to the bill was properly overruled. The plaintiffs are entitled to an order directing Heard, the administrator of the estate of the testatrix, not to pay over to the administrator of the estate of Abial an amount in excess of $10,000. Upon the final settlement of the testatrix's estate, the probate court will make a decree of distribution in accordance with the views herein expressed. Wood v. Stone, 39 N.H. 572, 574.
Case discharged.
All concurred. *Page 325