Brooks v. Goodwin

Wallace, J.

The allegations of the bill sliow that the plaintiffs and defendant, as heirs, each had an interest in the estate of Benjamin Kennard, unless that interest was taken away by an alleged will which they claimed was invalid, both on account of undue influence and by reason of the insanity of the testator; that they agreed to join in contesting the validity of the will, sharing the labor and expenses necessarily incident thereto, and, in case of a compromise, each to share equally the amount so received. It also appears from the hill that in pursuance of this agreement a contest was inaugurated and carried on against the will by the parties; that the defendant, by compromising this suit, received a considerable sum of money, which she refuses to share with the plaintiffs; and that the amount which slic lias received and the amount which she has expended in the legal proceedings are not knowm. to the plaintiffs.

I’lie parties could properly make the alleged agreement to protect their interests as heirs in the estate of Benjamin Kennard. Under the agreement, the plaintiffs are each entitled to one quarter part of the amount received by the defendant. They are also entitled to the aid of equity in discovering the amount received by the defendant, and in adjusting and settling the amounts properly paid by each of the parties in prosecuting the lawsuit. The bill can he- maintained. Equity will take jurisdiction to adjust the mutual accounts arising out of the contract of the parties, and to grant the discovery required in aid of the account.

Walker v. Cheever, 35 N. H. 339, 347;

Berry v. Whidden, 62 N. H. 473, 476.

Exception overruled.

Young, J., did not- sit: the others concurred.