#### HILTON *v.*RACKEY.

Contracts; Family Settlements; Consideration.

1. A contract between a widow and heirs at law, providing for the amicable and economical settlement of the estate in which they are interested, is one which the eourts will not only uphold, but encourage.

2. Where a family settlement provides that the widow shall have control of the real estate, with power to collect rents and pay charges, expenses, and debts for one year, and that the estate shall then be sold in a manner prescribed, and the proceeds distributed, one third to the widow and two thirds to the heirs, the provision for the distribution of one third to the widow is supported by a good consideration, which is the amicable and economical settlement of the estate. The limitation of one year applies only to the period of control of the estate by the widow.

No. 2256.

Submitted March 7, 1911.

Decided April 3, 1911.

Hearing on an appeal by the defendant in a partition suit from a judgment of the Supreme Court of the District of Columbia overruling exceptions to and confirming a report of the auditor.

*Affirmed.*

the Court in the opinion stated the facts as follows:

This is an action for the partition of the proceeds from the sale of real estate. One Henry Rackey died intestate in tbe1 District of Columbia on June 23, 1908, possessed of certain real estate. On July 11th following, his widow and five children entered into a family agreement for the settlement of the estate, the material provisions of which are as follows:

“This agreement made this 11th day of July, 1908, between William H. Rackey, Emma L. Hilton, Mary Bertha Darmstead, George E. Rackey, and Maurice H. Rackey, the children *84and sole heirs of Henry Backey, deceased, as parties of the first part, and Mrs. Lizzie Backey, the widow of said deceased, as party of the second part, witnesseth:

“That the said parties of the first part do hereby authorize their mother, the said Lizzie Backey, to take charge of the real estate belonging to their said father at the time of his' death, and to collect the rents thereof, to rent the same out in a fair and usual way when any house becomes vacant, and to apply all rents she collects, as she is hereby required to do, to the payment of all reasonable and lawful expenses of said real estate, including taxes, insurance, water rents, and repairs, and out of the balance of said rents left after the payment of said expenses, she shall pay as follows:

“First. So much money each month as will be sufficient to fully pay the debts and burial expenses of said Henry Backey, deceased, as the same now remain due and unpaid, but such payment- of debts and burial expenses to be made fully within one year from the time this authority is to commence. -

“Second. And after the payment of the said debts and funeral expenses, to apply so' much of said balance as remains for the comfort and support of said Lizzie Backey, widow. This authority to have charge of said real estate, and to proceed as herein before authorized and directed, shall be good for one year on and from the 24th day of June/1908, and no longer, but still subject to the further provisions herein as may be needed. And this agreement further witnesseth that by consent of all the parties hereto, that the said real estate shall be sold for some fair and reasonable price and as a whole. And that some fit person or persons may be employed by the said Lizzie Backey, with the consent of at least three of said heirs, to assist or make •such sale and upon usual charges. And all the parties hereto bind themselves to join in a good and valid deed or deeds to the purchaser or purchasers of said real estate, upon compliance on the part of such purchaser or purchasers with the terms of sale of such real estate. The purchase money arising from such sale, after deducting all lawful expenses incident to such selling, or that may further be required to be deducted for any *85purpose hereinafter,, shall be divided by giving one third thereof absolutely to the said widow, Lizzie Rackey, in full settlement of her dower rights, and the remaining two thirds shall be divided equally and in full right among the said five children- and heirs. * * * The right to sell said real estate shall begin with the execution by all of this agreement, and if such real estate be sold and conveyed away before the debts and funeral expenses are fully paid, then the said widow agrees to finish paying such out of her said one third.”

This agreement was formally executed under seal, acknowledged and witnessed before a notary public. About fifteen months after the execution of the agreement, the widow and two of the children brought this suit for partition by sale of the real estate of the intestate, the appellant, Emma L. Hilton, being the only defendant in the partition suit. The defendant in her answer admits all the averments of the bill, including the necessity for the sale of the property and a division of the proceeds among those entitled to receive the same. The answer, however, denies that the widow is entitled to more than a dower interest, alleging that the provisions of the agreement had expired by limitation, and that the consideration for making the agreement had failed.

The questions of law presented by the answer were considered by the auditor, who made a report upholding the agreement and providing for the distribution of the proceeds of the sale of the real estate in accordance therewith. To this report the defendant took exceptions, and the matter coming on for hearing in the supreme court of the District, the objections and exceptions were overruled, and a decree entered confirming the report of the auditor. Erom this decree the case comes here on appeal.

*Mr. J ames JE. Padgett*and *Mr. J ohn Ridout*for the appellant.

*Mr. Crandall Mackey*for the appellees.

*86Mr, Justice Van Obsdel

delivered the opinion of the Court:

The only question involved is whether the widow is entitled to one third of the proceeds of the sale of the property under the agreement, or whether she is only entitled to her dower interest in the estate. Counsel for appellant have mistaken the limitation of one year to apply to the execution of the entire contract, when it, in fact, only applies to the period over which the widow was to attend to the rental of the property. This provision was undoubtedly inserted for the purpose of giving the widow control of the property and the income arising therefrom during the reasonable period within which it was thought necessary to settle the affairs of the deceased’s estate. It in no way formed a consideration for granting to her a one-third interest in the proceeds of the property in lieu of her dower interest. Neither did it place a limitation upon the time within which the property should be sold and the proceeds divided.

The consideration for this contract was the amicable and economical settlement of the estate. It is a good and valid consideration. The contract is one which the courts will not only uphold, but encourage. It does not limit the method to be employed in disposing of the property. If it did, that method could be abandoned, and another adopted by consent of all the parties. No objection appears to have been made to the plan adopted for the sale and partition of the proceeds, the appellant’s only objection being that the widow is only entitled to her dower interest in the proceeds of the sale. As suggested, neither the time of the sale nor the method adopted constituted the consideration for granting the widow one third of the proceeds in lieu of her dower interest in the estate. The contract should be enforced.

The decree is affirmed, with costs, and it is so ordered.

*Affirmed.*