Harriette M. Parker &Amp; Others v. James M. Ames, Trustee

• Decision Date: 13 November 1876
• Citation: 121 Mass. 220
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Harriette M. Parker & others v. James M. Ames, trustee

121 Mass. 220

Harriette M. Parker & others v. James M. Ames, trustee

Supreme Court of Massachusetts

November 13, 1876

Franklin. Petition in equity to compel the respondent to settle his accounts as trustee, and pay over to the petitioners rents and profits due them under a deed of trust from Franklin Ripley and Daniel W. Alvord, executors of Elijah Alvord, to Ambrose Ames, dated November 26, 1841, by which certain real estate was conveyed in trust for the benefit of Mrs. Isabella A. Gould for her life, and at her death to be divided among her children, of whom the petitioners were three. The respondent, who became trustee in 1859, in the place of Ames filed an account, and the petitioners objected to the allowance of the following items: "1. To paid S. O Lamb, executor of I. A. Gould, $ 412.50. 2. To services for 16 1/3 years, at $ 15 per year, $ 245. 3. To extra care and services in attending suits, &c., $ 20. 4. To paid S. O Lamb for services in the matter of my appointment as trustee in 1859, $ 12."

Hearing before Devens, J., who reported the case for the consideration of the full court in substance as follows:

Mrs Gould died on September 14, 1872, leaving a will and personal property of which the petitioners were the sole legatees. The first item was made up of rents received by the trustee after the death of Mrs. Gould, and which were paid over by him to S. O. Lamb, the executor of her will, by whom they were expended in the payment of the funeral charges and just debts of Mrs. Gould. This item included the sum of $ 114.50, being the portion of the rent due October 1, 1872, which had accrued on September 14, 1872, the date of Mrs. Gould's death. The trustee had no authority from the petitioners to pay the amount of the first item to the executor, and while the petitioners did not authorize the executor to repay this sum to the trustee, they did not forbid him to do so, but left him to act in the matter at his own risk. The first item was disallowed, except as to the sum of $ 114.50.

As to the second item, the judge found that the charge was a reasonable one, and that it was understood, between Mrs. Gould and the trustee, that he should at some suitable time make a charge for his services; and that, during her life, he had paid over to her the entire income of the trust property. Of this item, the judge allowed only the sum of $ 37.50 for the care of the property after the death of Mrs. Gould.

As to the third item, it appeared that the respondent, after the death of Mrs. Gould, brought a bill in equity to obtain the instructions of this court upon the question whether the debts of Mrs. Gould's estate were a charge upon the trust property. The decree in the case contained the following clause: "And it is further ordered that said Ames be allowed to retain, out of the money now in his hands, the sum of fifty-eight 62/100 dollars,...