Albright v. Oyster

delivered the opinion of the court.

■ This was a suit' in equity brought by Mollie N. Albright and William E. Oyster, by their next friend, David E. Oyster, and David E. Oyster in his own right, citizens of Missouri, against George Oyster, Margaret Oyster, Margapetta Oyster, executrix of the last will and testament of Simon Oyster, de

The controversy grows out of a will made by Abraham Oyster, and a subsequent agreement in writing among the parties to this suit, who were beneficiaries under the will. The plaintiffs Mollie N. Albright and "William E. Oyster and the defendant Iola E. Oyster are the children of the plaintiff David K. Oyster.

Abraham'Oyster died in Lewis County, Missouri, on the 10th day of August, 1862, leaving four children, viz.-, the plaintiff David K. Oyster, the defendants Margaret and George Oyster, and Simon Oyster, since deceased. He left a will dated two. days before his death, and duly probated. in the county court of Lewis County, Missouri, on the 21st of October, 1862, which was as follows :•

“ It is my will that all my real estate, part of which is situate in Cumberland County; State of Pennsylvania, a part in Pike County, State of Illinois, and a part in Lewis and Marion counties, in the State of -Missouri — Island No. 14, in the Mississippi, opposite the city of La Grange, is not included in this clause —be taken possession of as soon as may be by the executors of this will, and that all such parts thereof' as can shall be leased or rented until such time, as, in the judgment of said executors, it will sell for fair prices, when they will proceed to sell said real estate to the best advantage, all of which they are hereby authorized to bargain, sell and alien in fee simple, and out of the. proceeds of such sale and rents —

“ 1. I hereby give and bequeath to .my daughter, Martha Oyster,-ten thousand dollars ($10,000).

“2. I give and bequeath to my son, George Oyster, ten thousand dollars ($10,000).

‘í-3. Of the remainder of . the proceeds of the sales and rents aforesaid I give and bequeath to: my sons, Simon Oyster, George Oyster and David Eh Oyster, and my daughter, Martha Oyster, each an equal-portion; but- it is my will that.

the portion, that falls to my son David K. Oyster my executors shall so dispose of as that only the interest annually shall be paid to him; also that the.saw-mill in the city of La Grange shall, until such time as my executors shall deem it proper to sell it, as the other real estate, be rented to my son David IL at a fair sum, or to some other person.

“ Also that my executors collect all the debts owing to me, and out of. such collections pay all the expenses of the executorship, including all fees, etc.

“ I do hereby appoint as executors of this will ■ my son George Oyster and my son-in-law Charles Oyster, both of the county of Cumberland, and State of Pennsylvania.”

Martha Oyster mentioned in the will is known as Margaret Oyster throughout these proceedings.

The bill of complaint in this case was filed on the 6th of September, 1883;. and, after setting out the foregoing facts in somewhat the same order as we have stated them, contained substantially the following material averments: In consequence of the executors named in the will not residing in Missouri, they were disqualified to. act, under the laws of. that State, and on the day the will was probated the court appointed David IL Oyster administrator of the estate of Abraham Oyster, deceased, with the will annexed, and he duly qualified as such administrator. Simon Oyster, and David K. Oyster were not satisfied with the provisions of the will, and, on the 18th of April, 1866, the former instituted a suit in the Circuit Court of Lewis County, Missouri, to have it set aside and declared null and void. While that suit was pending Simon Oyster died, leaving a will in which he appointed his wife Margaretta his sole executrix, with full power to settle up his estate. That' will was duly probated in the orphans’ court of Dauphin County, Pbnnsylvania, and the executrix took upon herself the execution of it.

On the 3d of March, 1868, the legatees under the will, then living, and Margaretta Oyster, executrix, etc., as a sort of compromise of the suit instituted by Simon Oyster, as aforesaid, entered into an agreement in writing, drawn by George Oyster, by the terms of which it was provided that, for the purpose of

In pursuance of that agreement, on the 13th of April, 1868, the suit instituted by Simon Oyster to have the will set aside was dismissed. Afterwards, in November, 1869, the lands be-, longing to the estate in Missouri were sold at public auction. A few days before the sale, George, Margaret, Margaretta, executrix, etc., and David K. Oyster held a consultation, at the residence of David K., as to the best method of carrying out the provisions of the will and the subsequent agreement, at which time it was fully agreed by all of them that at the forthcoming sale David K-. should bid in for the benefit of his children what was then known as the “home farm” of Abraham Oyster, for $12,000, and also 640 acres of land in what was known as “ Oyster prairie,” in Lewis County, in order that they (his children) might be made to share equally, in the • distribution of the estate, with the other' legatees who had recéived'advancements from Abraham Oyster during his life

'After a few other tracts of prairie land had been sold at what seemed to those interested to be unsatisfactory prices, an understanding was reached among the legatees under the will that the remainder of the prairie lands should be sold and bought in by any one of them without regard to price or location ; and, in order that such property might be equally divided among them, it was further agreed that three appraisers should be appointed to go with the county surveyor upon those prairie lands and divide them into four equal parts. • The sale then proceeded to completion, and the purchasers at the sale received their deeds from David E., as administrator. Afterwards, in pursuance of the agreement last above referred to, three appraisers were appointed, who made- division of the prairie lands bought in by the legatees under the will- in four equal parts, as nearly as was possible according to their value. Thereupon, by' virtue of a mutual agreement between the beneficiaries under the will, they selected their respective portions of the lands divided as aforesaid in the following order: (1) George Oyster, (2) Margaret Oyster, (3) Margaretta Oyster, executrix,'etc., and (4) Simon E. Oyster, for the benefit of the children of David E. Oyster. Accordingly deeds were made to each-one of them by David E., as administrator, including absolute deeds to Simon E. of the two first-mentioned properties and the last division of the prairie land. In making conveyances the prairie land property was treated as if it had been bid in at the administrator’s sale. The grantees in those conveyances thereupon took possession of the property

Subsequently, on the 11th of September, 1871, the Circuit Court of Lewis County, Missouri, appointed one Eobinson trustee for the children of David K., to take the property •purchased at the sale and that set aside by the appraisers for the benefit of those children, and authorized him to receive said property at the prices at which it had been bid in by Simon Ñ, as aforesaid. The trustee made demand therefor of Simon K., but the latter, acting under the influence of the defendant George Oyster, declined to make such transfer; and soon thereafter the trustee died without having begun any proceedings to compel such conveyance.

The deeds, to Simon 3L, although absolute in form and purporting to have been executed in consideration of $21,000, were taken by Simon K. with the distinct understanding that he should hold the property as the trustee for the benefit of the children of David 3L, and no consideration whatever was paid by him, all of which facts were well known to all the beneficiaries of the estate. But, nevertheless, on the 10th day of February, 1881, Simon K., with full knowledge of all- the facts in the premises, and in violation of the trust reposed in him, in consideration of the sum of' five dollars, (which was never paid,) conveyed the property deeded to him as aforesaid to the defendant George Oyster, who also had.full knowledge of all those facts .and circumstances relative to said trust, and who, in fact, was mainly instrumental in procuring such conveyance to himself, by representing to Simon 3L, who was then very sick, that if he should die it would involve his estate in much litigation, and that he (George) would indemnify him (Simon K.) against any loss which he might suffer by reason of such conveyance.

At the time of the partition and sale aforesaid the children of David K. were all minors and unmarried. But subsequently the daughter, Iola E., intermarried with said Simon K., and moved to Pennsylvania. The other daughter married the defendant' John Albright, but both she and.her brother, William E., have always lived with their father, who had been in posses

Soon after the defendant George Oyster got the legal title to the lands in question, he instituted a suit in ejectment •against David K., which, under a stipulation between the parties to that suit, resulted in a judgment of ouster against David K. on the 30th of April, 1883. At the same time the plaintiff in that suit agreed not to cause execution to issue on his judgment before the 1st of May, 1884, in order that the plaintiffs in this suit might have time to file this bill, to test 'their equitable rights to the property in dispute.

The bill further stated that the reason the plaintiff Mollie N. Albright appeared by her next friend, and her husband, •John Albright, was made a defendant, was because they did not live together, and he refused to join ás a eoplaintiff with her; and that the reason Iola E. Oyster was not made a coplaintiff was because she was. under the influence and control of her husband, Simon K., who refused to join as a •eoplaintiff in this suit.

The prayer of the bill was for an injunction to restrain the ■defendant George Oyster from causing execution to issue on the aforesaid judgment in the ejectment proceedings, and for a decree directing him to convey the property in dispute to the plaintiffs and the defendant Iola E. Oyster, on the ground that the conveyance of the property to Simon K. Oyster was made in trust for their use and benefit, that it had been fully paid for out of David K. Oyster’s distributive share of the •estate of his father, and that the defendant George Oystefc acquired the property, with knowledge of the trust, and parted with no value therefor; and for other and furthef relief, etc.

George Oyster filed an answer to the bill, and the main issues in the case arise out of the bill and that answer. It was in substance as follows: It' admitted all the averments •contained in the bill up to and including the making of the .agreement of March 3, 1868, modifying the terms of the will; and averred in relation to that matter that the respondent

The answer then averred that, at the sale, property to the value of $4920 was sold to strangers, and the "remainder of it was "bid in by the four legatees or by some one in their interest under the "agreement; that the sale having been concluded, the four legatees under the will met and mutually agreed upon the division that should be made of the property bid in by them, whereby $3500 worth of lands fell to each respondént, Margaret and Margaretta, executrix, etc., and $6000 worth to them jointly, (none of which are in dispute,) and all the remainder of the property,"that in dispute, was apportioned to David K. for $21,800; that all of that property was to be accounted for by them respectively, according to its amount and value; that, as the property apportioned to David K. was more than his share under the will and the modifying. agreement, it was agreed" that the'title to that-, property should remain in the estate until paid for by him, and' be chargeable with the purchase money; that the deeds were made in pursuance of that agreement or understanding; that respondent, Margaret ^and Margaretta, executrix, etc., each paid to the administrator the price of the lands allotted to them respectively, but that the purchase price of the "land conveyed by Simon K. was not paid by him, by’ David. K., or by any one else; that David K., as administrator, was chargeable with

It was denied that the “ house farm” and the 640 acres of prairie lands, or either of them, was bid in for the benefit of the children of David IL, or that Simon IL ever held said lands upon any trust whatever for said children. It was then averred tjhat the alleged trust in Simon IL was void under the Missouri statute of frauds, because it was not in writing. Further answering, respondent admitted that Simon 3L never paid any consideration for the property in dispute; and averred that neither did the plaintiffs, who claim to be his cestuis que 'trust, ever pay any consideration therefor, and that plaintiffs should be estopped from averring the consideration in the deed to Simon IL to have, been other than that stated in the deed.

The conveyance of Simon IL to respondent was admitted, but it was denied that any unfair means were adopted by respondent as an inducement to that conveyance. And it was further averred that the conveyance was taken by respondent, not for his sole use and benefit, as alleged in the bill, but in trust for the benefit of the legatees under the will, as the only means of securing the amounts due from David IL to the other legatees, David IL and his sureties on his official bond being wholly insolvent; that all acts done by respondent since' he secured the title to the property were likewise in the execution of said trust; and that respondent is still claiming to hold the property in trust as aforesaid.

Without going more into detail, it is sufficient to say that

Margaret Oyster and Margaretta Oyster, executrix, etc., filed separate demurrers to the bill on the ground that it did not allege that those defendants had any interest in the lands .mentioned in the bill adverse to plaintiffs, or that those defendants did in any way controvert or deny,'or had in any way controverted or denied, the rights of plaintiffs to the relief demanded, or that those defendants were in any way interested or concerned in the granting or refusal of the relief demanded; and because no case was stated which entitled plaintiffs to any discovery or relief against those defendants.

lola E. Oyster filed a disclaimer; and Simon EL. filed a plea that the trust alleged to have been in him was- not in writing, and was, therefore, void under the laws of Missouri.

The plaintiffs filed exceptions to that part of the answer of George Oyster which set up the statute of Missouri to defeat the trust, aiid also to the plea of Simon K. Oyster setting up the same defence, on the grounds (1) that the facts alleged in the bill took the case out of the operation of the statute, (2) that there had been a part performance which took the case out of the operation of the statute, and (3) because the alleged trust was a resulting trust.

On the 31st of January, 1884, the court entered an order overruling the demurrers of Margaret and Margaretta Oyster, sustaining the exceptions to the plea of Simon EL. and the first exception to the answer of George Oyster, overruling • the other exceptions to the answer, and giving the defendant Simon EL. leave to answer in twenty days. TÍie opinion of the court on these points, delivered, by Judge Treat, is found in 19 Fed. Rep. 849 .

On the 4th of February, 1884, the plaintiffs filed a reply to the answer of George Oyster; and on the 18th of the same month Simon EL. Oyster filed-an answer to the bill, in which he admitted many of the facts alleged in the bill, among

Eeplication was also filed to this answer; and the case being thus at issue a considerable amount of testimony was taken. The case was heard upon the pleadings and proofs, and arguments of counsel, and on the first of December, 1884; the Circuit Court entered a decree dismissing the bill of complaint, without prejudice to any rights that the parties might have in the final administration of the trusts which were found to have devolved on the defendant George Oyster, by the deed from Simon X. and the aforesaid contract of March 3, 1868, modifying the will of Abraham Oyster, deceased. The opinion of the court, delivered by Judge Treat, is found in 22 Fed. Rep. 628 . An appeal from that decree brings the case here.

The theory upon which this suit is prosecuted is, that the ■complainants are the owners in equity of the real estate described in the bill, the consideration for it having been paid by the distributive share of the complainant David X. Oyster, in his father’s estate; that part of the property described was bid off at the sale in 1869 by Simon X. Oyster, for the benefit of the children of David X., and the remainder, which was the one-fourth part of the lands in Oyster prairie set apart as the share of David X., was bid off at the sale by the heirs; that all that property was deeded to Simon X., as trustee for David X. and his children, the conveyance not proceeding directly to the beneficiaries, because, under the law of Missouri, David X., being administrator of the estate, could not convey to himself individually, and his children at that time were minors; and that the conveyance of the property by Simon X. to the defendant George Oyster was charged with those trusts. The real defence of George Oyster is, that David X. Oyster was i n

As the whole question in the case is one of fact, we have given the evidence a very careful examination. Certain facts are undisputed, or are clearly proven. Abraham Oyster died testate in Missouri in 1862, leaving a large amount of property in that State, in Illinois and in Pennsylvania. He left four children surviving him, Margaret, Simon, George and David K. A few years before his death he had made certain advancements to Margaret, George and Simon, but had advanced nothing to David 3L By his will he made further preferences in favor of George and Margaret, bequeathing to them $10,000 apiece, and then dividing the remainder of the estate equally among the four children. The clause in the will relating to the share of David K. was worded somewhat peculiarly, as follows: “It is my will that the portion that falls to my son, David K. Oyster, my executors shall so dispose of as that only the interest annually shall be paid to.him.”- We need not stop here to considpr the legal effect of that clause. But the evidence clearly shows that, until a very recent period, the understanding of all the legatees was, that it conveyed to David K. only a life estate in the share coming to him, with a remainder over to his children. The foregoing facts are thus stated in the forefront of the opinion, because upon them hinges much that is to follow.

. As is usual when there has been an unequal division of an estate among the children of the testator, those receiving the

The unequal distribution of the estate of Abraham Oyster by his will and the suit of Simon to set it aside brought about the agreement in writing of March 3,1888,'amendatory of the will. The object of that agreement was to place the children of Abraham Oyster on a comparatively equal -footing respecting the estate, and to compromise the suit of Simon; for the understanding of the parties was, that that suit did not abate by his death. That agreement is as averred in complainant’s bill; but to make its terms fully understood it may be necessary to advert to certain facts brought out by the evidence. As already stated, Abraham Oyster, in his lifetime, had made advancements to Margaret, Simon and George, but had never advanced anything to David K. Those advancements appear to have been made in the years 1858. or 1859. Accordingly, the first consideration moving in the agreement was to place David K. on a comparatively equal footing with his brothers and sister. The agreement, therefore, provided that Margaret, Margaretta, executrix, and George, should quitclaim their interests to David K. in the following property belonging to the estate: (1) Six hundred and forty acres of unimproved land in Lewis County, Missouri (known as a portion of the “ Oyster prairie ” lands, in the subsequent proceedings) ; and (2) three hundred and twenty acres of land in Pike County, Illinois. Certain particularly described property in La Grange, Missouri, known as the “saw-mill” property, was to.be sold

Regarding subsequent events in the distribution of the estáte, there is some dispute. But we think the evidence, fairly and reasonably considered, warrants us in finding the following: As before stated, George Oyster was one of the executors of his father’s will. In the management and settling up of his father’s estate in Illinois and Pennsylvania he had full'and absolute control. He was the leading spirit of the family, and, in the matter of the estate, whatever was said or done by him was acquiesced in by his sister Margaret and his sister-in-law Margaretta. He conceived the idea, either originally or after taking the advice of counsel, that the agreement of March 3, 1868, was not valid and binding upon the parties to it, for the reason that Margaretta, as executrix, had no power to make any agreement or conveyance that, would be binding upon minor' heirs. Accordingly, while the subsequent proceedings in the settlement of the estate were' carried out on the basis of the equality of interests represented by the contract of March 3, 1868, the proceedings authorized by that contract were not adhered to. No .quit-claim deeds were made to David K. for the 320 acres of land in Illinois, or the 610 acres in Lewis County, Missouri; nor did David K. receive the $5000 from the estate, according to the terms of' the contract. But an oral agreement was reached at some time after the date of the contract and prior to the 15th of November, 1869,- (the precise date not being readily ascertainable, nor is it material,) by which the interest of David K. in

“ Simon having brought an action to test the validity of' Father’s will, His Executrix is a Legal party to the articles of Agreement we have Entered into, having made his objection in said suit a part of the consideration upon which our agreement was based whereby his Executrix represents all the interest that Simon has or may have had to any and all Interest arising to Simon of Father’s Estate, in the property Contained or embraced in said agreement.

“ The minor or other children of Simon are all represented By Simons Executrix and when you, as administrator of Fathers Estate, proceed under an order of sale from the court in pursuance of Father will, you are the proper party to sell and make all the titles for all the property Belonging to said Estate and after having done so and received the proceeds arising from such sale and you make or are ready to make Distribution of the same that Simon Executrix on receiving

his share or Interest arising therefrom that her release to you will be all that will be necessary to forever exclude any and all heirs of Simon from any further claim. Such is certainly the iaw here' She having her Letters Testamentary Issued here. Now the only question that presents itself to my mind is whether the Laws of your state will recognize acts legally done by her here as of the same force and effect “there, if not, then her signature and acknowledgment to the agreement can be of no value and the whole agreement become void, as it was not the intention of any of the parties to it at the time of making it that it should be confined in its efféct to the property in this state; and in regard to the farm on. which you live You will best make Title to some other person who will return the title to you, or have title through an order of 'the court. I am of the Opinion that Simon’s Executrix would not be vested with power to join us in making title to you for property there that would exclude the minor children from claiming thereafter. I hold that the power to become a competent party to the agreement by which real Estate, is disposed of arose from Simon’s own act in filing Exceptions to the manner in which Father disposed of his property in which he was interested in the final Distribution and that in the Balance of the property she is not legally qualified to do anything more than receive the share due Simon and release the Executors and Administrators therefrom.

“ In making or having title made to the farm you should have it made so that the trust vested in the executors by father can be discharged and all your interest'in the moneys arising from the sales of real estate can be. invested in that property in pursuance of the will, otherwise the interest arising out of this property here would have to continue in the possession of the executor as trustee which is not desirable. I wish it so arranged that your shares shall be vested in that farm, and the trust closed in it.”

The sale of the property was made by David K. as administrator, as advertised, on the 15th of November, 1869. For t¿e purpose of making plain the facts connected with that sale we will divide the lands sold into eight parcels, following

It was found, however, that, under the laws of Missouri, David K. could not bid in' any property at the sale, because he was the administrator of the property to be sold. Without going into the details of the transactions on the day of the sale, or referring particularly to all of the evidence upon which our judgment is based, it is sufficient to say that, in our opinion, the evidence, fairly and reasonably considered, shows that Simon K. Oyster was selected, and mutually agreed upon by all parties in interest, to represent the share of David K. in the bidding in of the property which had been selected for that share. Under that arrangement Simon K: bid in parcels 3, 4,. 5, 6 and 7, as above designated. Parcel 4 was bid in at $5 per acre, $3200; but, in reality, it matters nothing what the price of it was, for it was purely a pro forjna proceeding for the purpose of ultimately passing the title to it to David K.’s share, in pursuance of the agreement for the equalization of the shares that was, at that- time, being carried out in apparent good faith. That parcel, as was also parcel 3, was bid in by Simon K., as trustee for the share of Davjd IL, to effectuate the same -purpose as was originally intended to -be accomplished by quit-claim deeds which were contemplated by the agreement of March 3, 1868; and this proceeding was adopted in preference to quit-claim deeds from the other legatees, as being safer and in accordance with the law, as the parties then understood it, as already stated. We say, therefore,

Parcel 3 was to be paid for at the price stated in the agreement of March 3, 1868, to wit, $1125 ; and in the final settlement of the estate that sum was to be charged against the share of David K.

Parcel 2 was bid in for the benefit of George, Margaret and Margaretta, executrix, etc., and was to be accounted for by them at $6000. To equalize David K.’s share with that transaction, it was to receive parcels 6 and 7. Parcel 6, known as the “Durgin Creek property,” was valued at $10 per acre, or $100; and parcel 7 at $35 per acre, or $1575 — $1975 for both tracts, or practically equal to one-third of the value of .parcel 2.-

Parcel 1, as we have stated, represents land sold to various' persons.other than the legatees. The amount realized from the sale of those parcels was $1920. It was found, however, during the progress of the sale, that the land was not bringing what the heirs thought it ought to bring. Accordingly, it was arranged that any tract which should not sell for about its full value should be bid in by one or the other of the heirs, it mattered not which, for the benefit of all; and that at the. conclusion of the sale the lands thus bought in should be divided into four parcels, as nearly equal in value as could be ascertained.

That arrángement was carried out; the remainder of the lands, aggregating about 2200 acres (parcel 8), were bought in promiscuously by the heirs; and they were' afterwards divided into four equal parts, according to their value, by three appraisers and a surveyor appointed by the heirs. One of those parts was selected by Margaret; another by Margaretta, executrix; a third by George; and the fourth was left for the share of David K. Deeds were made by David K., as administrator, to Margaret, Margaretta and George for their

This letter, written about the time the transactions to which it refers occurred, is of vastly more value, as evidence, than the statements of witnesses as to the same occurrences made many years afterwards, when differences had arisen and their minds were more or less prejudiced in favor of their own interests.

Upon this branch of the case, therefore, we say, that our conclusion is in accordance with complainant’s theory of the case. We think there can be no reasonable doubt but that parcels 3, 4, 5, 6 and. Y, as above designated, were bought in at the sale by Simon K. Oyster, as trustee for the share of David K.; that parcel 4 went to David K.’s share of the estate towards equalizing that share with the shares of the other heirs who had received advancements for more than that amount a few years before the death of Abraham Oyster, and was, therefore, fully paid for; that parcels 5 and 6 went to David K.’s share, while parcel 2 went to Margaret, Margaretta, executrix, and George,' thus practically equalizing the shares in those transactions; that parcels 3 and 5 were bought in for the benefit of David K.’s share — the former at $1125 and the latter at $12,000; and that parcel 8 was equally divided among the heirs, according to its value. With respect, then, to parcels 4, 6, Y and the one-fourth part of parcel 8, we think the evidence shows that they have been fully paid for by David K.’s interest in the estate of his father, in accordance with the will and the subsequent modifying agreements; that

With respect to parcels 3 and 5, that is,.the “saw-mill property” and the “home farm,” we are equally clear that they were bid off by Simon K. Oyster for the benefit of the share of David K., were deeded to him as such, and were conveyed by him to the defendant George Oyster charged with that trust. The only difficulty on,this point is as to whether the' consideration for those two pieces of property was fqlly paid by the interest of David K. in bis father’s estate.

As already stated, those two pieces of property were to be paid for at $1125 and $12,000 or $13,125. Under the agreement modifying the will, however, David K. was to receive $5000 cash from the estate and also 320 acres of land in • Illinois. He never received either of those items; but their value was intended to be concentrated in the “ home farm.” It is shown by the evidence that the title to 160. acres of the 320 in Illinois failed, through some delinquent tax proceedings, and that George Oyster, as executor, sold the other 160 acres, receiving therefor, it seems, the sum of $1800. Thus at least $6800 was paid on parcels 3 and 5, by the equalization ■ proceedings, leaving but $6325 due to the estate for those two pieces of property. This sum represents an asset of the estate of Abraham Oyster, deceased. In the' administration of his executorship in Illinois and Pennsylvania, George Oyster received a considerable amount of money — the exact amount not being ascertainable from the present record, because he does not appear to have made a final settlement of his executorship. That sum also represents an asset of the estate. Likewise the amount received by David K. from; the sale cff the personalty of the estate represents an asset.

At the sale on Nov. 15, 1869, certain lands (parcel 1) were sold to strangers for $4920. According to the evidence herein, that sum was paid to George Oyster and is, therefore, chargeable against him as an asset of the estate. These assets are the portion of the estate which, under the will and the modifying agreements, was to be equally divided among the four

There should, therefore, be an accounting between ..George Oyster and David K. before there can be any exact settlement of the estate as to them.

As respects Margaret Oyster and Margaretta, executrix, etc., we are of the opinion that, as against David K.’s share in the estate, they have no claim whatever. Although made defendants in this suit, they did not defend, except to file a demurrer, which was overruled; and they never answered. They have had their day in court, as regards David K. Oyster and his share of the estate; and any claim which either or both could have asserted against him cannot now be prosecuted.

It will be observed that We have not seen fit to determine the legal effect of the will of Abraham Oyster, or the modifying contract of March 3, 1868. ¥e have proceeded, rather, on the real intention of the parties, as manifested by that agreement and the subsequent oral agreements shown by the evidence to have existed.- Those agreements when made were fair to all interested, and having been acted upon and acquiesced in by every one concerned for a long period, ought to be taken as the basis of the final settlement.

It is certainly for the interest of all concerned that litigation over this estate should-' cease. Nearly thirty years have elapsed since the death of Abraham Oyster, and nearly the whole qf that period has been spent in litigation by his children over the property disposed of by his will. Animosities have been engendered by these proceedings, and a total estrangement now exists between the brothers George and David 3L Moreover, the title to a large amount of valuable property has been in dispute all that time. The interests of the community, no less than the interests of the parties, require that there should be an end of litigatio i respecting it.