American Tubeworks v. Tucker

• Decision Date: 27 February 1904
• Citation: American Tubeworks v. Tucker, 185 Mass. 236, 70 N.E. 59 (Mass. 1904)
• Parties: AMERICAN TUBEWORKS v. TUCKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

185 Mass. 236

70 N.E. 59

AMERICAN TUBEWORKS v. TUCKER.

Supreme Judicial Court of Massachusetts, Suffolk.

February 27, 1904

COUNSEL

M. J. CreedJ. Porter Crosby, and Walter A. Buie, for plaintiff.

Anson M. Lyman, for defendant.

OPINION

HAMMOND J.

The plaintiff seeks to hold the defendant, first, upon the ground that she, as executrix of the will of her late husband, Isaac N. Tucker, was carrying on the business through her son Charles, as her agent; and, second, on the ground that she by her acts and omission to act when she should have acted and by her conduct in general, permitted Charles to hold himself out as conducting the business for the estate, and the plaintiff, in reliance upon that representation, parted with its goods, and that therefore she is estopped to deny that she is individually responsible to the plaintiff.Shortly stated, the contention of the plaintiff is that the defendant is responsible either because she was the contracting party or because she is estopped to deny that she was.

The second, third, and fourth requests relate simply to the case as shown in the auditor's report, and, inasmuch as there was other evidence introduced at the trial, they are open to the objection that they were requests for a ruling upon the effect of only a part of the evidence considered separately from the rest, and it is well settled that that is a sufficient reason for the refusal of the court to give them.We pass, therefore, to the consideration of the first request, which was, in substance, that on the evidence a verdict should be ordered for the plaintiff.At the death of the husband in October, 1899, the situation was peculiar.He had been carrying on the plumbing business for years, but for the last few months of his life he had not been able to attend to it, and the son, Charles, 'had been in entire charge thereof, consulting often with his father.'The will contained a bequest to Charles of 'the business now carried on by me, together with all stock in trade, apparatus, tools and utensils, books and book accounts, contracts, and all things pertaining to said business.'Several conditions were annexed to the bequest, one of which was that, in addition to other sums, Charles should pay the 'debts owing * * * on account of the business.'The plain intent of the testator was that Charles, upon complying with the conditions, or giving a guaranty of compliance, should take the business as it was, with the right to all the assets, including books accounts and unfinished contracts, and should be liable to pay all the business liabilities then existing.In a word, the testator intended that both as to assets and liabilities his son should stand with reference to the business as he(the testator) stood at the time of his death.After the death of his father, Charles assumed charge and control of the business, and the defendant, neither as executrix nor as an individual, assumed any control or drew any money from the business; and the evidence tended to show that both the defendant and Charles believed that upon the death of the father the business passed under the will to Charles as his own, and that he took possession and carried it on not as the agent of his mother, but as legatee under the will.It is true that he collected the bills which were unpaid at the time of his father's death, and that he paid many of the business debts left by his father, but in doing all this the jury might have found that, as between him and the estate, he was acting under the rights granted to and the responsibilities imposed upon him as legatee by the will.To a certain extent, so far as respected the business, he had, upon this view, assumed as legatee to do what ordinarily is done by an executor.If he was thus acting, the fact is important, and it furnishes a reasonable explanation of his conduct in doing in the business many things the duty to do which primarily rested upon the executrix.So far as respects the inventory sworn to a few weeks after the testator's death and filed in the probate court in June, 1900, it may be said that, since the property in the business was a part of the assets of the testator's estate, it was the duty of the executrix to charge herself with it in the inventory; and that was so even if she had delivered the property to the legatee.Nor do we think that the method of keeping the bank account, as it is explained by the witnesses, is conclusive in favor of the view that the defendant was carrying on the business.

It is urged, however, by the plaintiff that the son had not complied with the conditions of the bequest, and that therefore the defendant had no right to turn the business over to him; and the twelfth request embodies that proposition in substance.Upon that point the jury were instructed to the effect that this requirement of a guaranty was for the protection of the beneficiaries under the will and that, if the executrix saw fit to turn over the business to Charles without a guaranty, or before a performance of the conditions...