Robertson v. Hirsh

• Citation: 276 Mass. 452,177 N.E. 676
• Parties: ROBERTSON v. HIRSH.
• Decision Date: 14 September 1931
• Court: United States State Supreme Judicial Court of Massachusetts

276 Mass. 452

177 N.E. 676

ROBERTSON

v.HIRSH.

Supreme Judicial Court of Massachusetts, Suffolk.

Sept. 14, 1931.

Appeal from Superior Court, Suffolk County; Wilford D. Gray, Judge.

Suit by James D. Robertson against Ella A. Hirsh, executrix. From the decree, defendant appeals.

Affirmed.C. A. Warren, of Boston, and N. R. Voorhis, of Winchester, for plaintiff.

Raymond Baldwin and Lawrence Black, both of Boston, for defendant.

WAIT, J.

No novel questions are argued in this case. It is recognized law that an attorney in dealing with a client, or a trustee in administering a trust, cannot make a secret profit at the expense of the client or cestui que trust. If such profit is made it must be accounted for, and the offending attorney or trustee will not be allowed to retain charges for services during the period of unfaithful administration. See Ball v. Hopkins, 268 Mass. 260, 269, 271, 272, 167 N. E. 338;Flynn v. Curtis & Pope Lumber Co., 255 Mass. 352, 356, 151 N. E. 379;Rolikatis v. Lovett, 213 Mass. 545, 100 N. E. 748;Little v. Phipps, 208 Mass. 331, 333, 334, 94 N. E. 260,34 L. R. A. (N. S.) 1046. The trial judge in the Superior Court has found that, here, an attorney at law was by operation of law a trustee of real estate in a resulting trust for the plaintiff, his client, the beneficial owner of the property. The court, by its decree, has ordered the defendant, who is the executrix of the attorney and devisee of the property under his will, to convey the property to the plaintiff, to pay back amounts which he received for services, to return the secret profit, with interest, and, furthermore, to pay over the rents and profits of the property collected and retained by her as executrix and as legal holder of the title since his death. The defendant, properly, has not argued the demurrer filed to the amended bill. The bill, as originally filed, set out a cause of equitable cognizance. The defence of multiplicity is untenable. The defendant if she held a bare legal title could be compelled to convey and to account for rents and profits received by her. Since the proof of the nature of her title involved the conduct of her testator and liability of his estate, no injustice in done by dealing with the matter of his secret profit and improper charges in the same proceeding. Multifariousness is not necessarily a good defence to a bill in equity. Bliss v. Parks, 175 Mass. 539, 543, 56 N. E. 566;Robinson v. Guild, 12 Metc. 323, 328. See Hermanson v. Seppala, 255 Mass. 607, 610, 152 N. E. 363. The evidence disclosed that the plaintiff was ignorant of the secret profit until these proceedings had begun. The statute of limitations, therefore, did not bar recovery under the bill as amended to include the claim for its recovery. Gould v. Emerson, 160 Mass. 438, 440, 35 N. E. 1065,39 Am. St. Rep. 501;Dunning v. Bates, 186 Mass. 123, 71 N. E. 309;Manning v. Mulrey, 192 Mass. 547, 550, 78 N. E. 551.

The defence is grounded on the contention that the evidence does not justify the decree with reference to the secret profit, the denial of allowance for services as attorney and as trustee in the accounting, and the requirement of repayment with interest. Detailed statement of the evidence is unnecessary. In substance it appears that the attorney purchased real esate on Boylston Street, in Boston, with money furnished by his client, and took title in his own name. He...