Henry Billings Brown

“ While Helen was not a party to this instrument, by reason of nonage, as she stood in the same position to the estate as her sisters, and was equally a creditor of her mother, there is no reason why the instrument may not be used as an acknowledgment of her mother's indebtedness to her, as well as to the others. The fact that the sisters became executrices of their mother's will did not cancel such indebtedness, but rendered it impossible to bring an action at law, inasmuch as they would be plaintiffs in their own right and defendants as executrices. ”

“ The theory of the appellants is that the relation of the testatrix to her children was that of trustee, and not of debtor, and that the will, by reason of its provisions, operated the extinguishment, discharge, and payment of the complainants' claims, and that said claims ceased to be provable as debts against the estate. ”

“ The objection that the complainants were incompetent to testify as to their mother's statements, and as to transactions in which she took part, is entitled to some weight, and is not free from doubt. There is much reason, however, for saying that, as the object of this testimony was not to prove complainants' claim against the estate, but to show that their sister Augusta had had a similar claim, and had been paid, and the testimony related to conversations between Mrs. Patten and her daughter Augusta, the statute did not apply ”

“ The instincts of a mother would naturally lead her to put her daughters upon an exact equality, and the case is manifestly one for the application of the legal maxim that 'equality is equity.' That it ever entered her mind that one of her daughters should be preferred to the others in the very large sum of $102,800 is extremely improbable. ”

“ Glover had not received her share, it would make but little practical difference whether the agreement of September, 1885, were treated as an operative instrument, or merely one for the purpose of satisfying the sureties on the administratrix's bond. As the effect of the latter construction would be to prefer Mrs. Glover to this amount over her sisters, the court will construe it as the parties themselves have construed it. It is apparent from what has been said that no interest should be allowed prior to the death of Mrs. Patten. ”

“ While such communications might be privileged if offered by third persons to establish claims against an estate, they are not within the reason of the rule requiring their exclusion, when the contest is between the heirs or next of kin. ”

“ That such legatees need not be joined is as clearly settled as that other libelants need not be joined as respondents in a suit in admiralty to establish a claim against a vessel, although they may be admitted to defend. ”

“ Glover, by reason of her guardianship, they alleged that in September, 1885, the amount of her indebtedness was adjusted, settled, and determined by mutual agreement (except as to Helen) , evidenced by the paper writing of that month hereinbefore set forth; that Helen, being fully advised in the premises, adopted and accepted the said agreement and settlement; that, by virtue of the premises, Mrs. Patten became and was indebted to each of the petitioners and to Mrs. Glover, as of that date, in the sum of $101,600 ”

“ Glover, the remaining executrix, appeared, and filed an answer, admitting the inheritance by her and the complainants of the estate aforesaid from their father, and set forth, in substance, that the said testatrix did become guardian of the complainants and said defendant, as alleged, and did receive their said estate aforesaid said as such guardian, but that said testatrix never formally settled her accounts as such guardian, she not having been called upon so to do ”

“ Patten told him afterwards that she put these bonds under her daughter's plate, and that she went off and forgot them. The testimony of the complainants, which for this purpose is competent and uncontradicted, was: That Mrs. Glover asked the witness Josephine on one occasion, when she had returned home, where she had been. That she replied that she had been to the treasury, where her mother went to transfer her bonds to her name to the amount of $80,000, to which Mrs. Glover said, 'That is not enough.' Josephine replied: 'It is too much ”